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Rohtas Industries Ltd Vs. Its Workmen & Others | Appellate Tribunal in its order has mentioned that the attempt to challenge the award of the Tribunal on the point of multipliers and the age of the machinery and buildings was a half-hearted one. Whether or not it was so, we are satisfied that the Appellate Tribunal agreed with the conclusion of the Tribunal on the point of multipliers and divisors after applying its own mind to the evidence. There is nothing therefore that would justify us in interfering with its conclusions as regards multipliers and divisors.9. On the question whether the Tribunal was justified in allowing only 4 % as the rate of return on the paid up capital the appellate Tribunal after setting out the reasons mentioned by the tribunal for its view stated "In arguments the reasons given by the Industrial Tribunal for allowing return on paid up capital at Rs. 4 per cent per annum were not disputed." It is not said before us that the appellate Tribunal was wrong in making this statement . An attempt was made to explain away with this statement by saying that what the Appellate Tribunal wanted to say was that the correctness of the fact mentioned by the Tribunal in respect of its conclusion that the rate of interest was 4 % was not challenged. We see no reason to put such a strained interpretation on the words used by the Appellate Tribunal and think that when the Appellate Tribunal says that the reasons given by the Industrial Tribunal for allowing return on paid up capital at 4 per cent per annum were not disputed, they mean to say that the correctness of the reasoning was not disputed. In that view, we cannot allow the appellant to raise the question of rate of return on paid up capital before us.10. As already stated, the Appellate Tribunal held that the first Tribunal was in error in allowing return at the rate of 2 per cent. per annum on the reserves used as working capital and the rate of 4 per cent. should be allowed. The Appellate Tribunal was clearly right in this and the correctness of this conclusion is not disputed before us on behalf of the workmen.11. We therefore reach the position that the available surplus which was assessed by the Tribunal at Rs. 11,53,589 has to be reduced by the sum of Rs. 4,88,214.12. That then is the surplus out of which the bonus is to be paid. Once bonus is paid the employer would obtain a rebate on income-tax in respect of the bonus. The process applied by the Appellate Tribunal of adding back the amount expected as rebate on income-tax in arriving at the amount of available surplus is however not only confusing but erroneous.13. The fact that on bonus being paid the employer would be entitled to a rebate on income-tax is certainly a very important consideration which has to be taken into account before the final amount of the bonus is decided upon. As has often been pointed out and recently reiterated in Associated Cement Co., Ltd. v. Its Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ), the Tribunal in deciding on the question of bonus to be given to workmen has to bear in mind that the Industry and the employer are also entitled to a fair share of the benefit derivable, by reason of the emergence of the surplus. It is in this connection that the amount available as abatement as income-tax in respect of the bonus awarded comes into picture. The proper approach to the question is to decide first on a tentative figure for bonus, after taking into consideration the wage structure of the Industry and other relevant matters and then to see after taking into consideration the amount receivable as rebate on income-tax how the share of the workmen on the one hand and the Industry and the employer on the other compare. If the tentative figure gives a fair share to both sides, that should be adopted as the final figure. If the tentative basis does not result in a fair division, another basis should be attempted, and so on, until a figure which results in a fair division is reached.14. It has to be mentioned first that we have not got the benefit in the present case of any evidence as regards the comparative position of the wage structure in these factories as compared to other industries in the neighborhood or as regards any of the other matters which have to be taken into consideration in deciding whether the share of the workmen should be small or large. In the absence of any such evidence we consider it proper that the bonus should be fixed at a figure which will have the result of giving the workmen on the one hand and the Industry and the employer on the other more or less equal benefit. We find that on reduction by Rs. 4,88,214, for the reasons mentioned above, the available surplus on the application of the Full Bench Formula stands at Rs. 6,65,375. The monthly wage bill at the relevant time is stated to be in the neighborhood of Rs. 2,40,000. If two months basic wages be given as bonus the workmen would benefit to the extent of Rs. 4,80,000 while the benefit to the Industry and employer would be Rs. 1,85,375 plus Rs. 2,10,000 received as rebate on income-tax, i.e., Rs. 3,95,375. That would give an unduly large share to workmen. If a bonus equivalent to 1 3/4 months basic wages be awarded so that the workmen would benefit to the extent of Rs. 4,20,000 the share of the Industry and the employer would work out at Rs. 2,45,375 plus Rs. 1,83,750, i.e., Rs. 4,29,125. This appears to be reasonable.15. We have therefore come to the conclusion that the award given by the Industrial Tribunal and confirmed by the Appellate Tribunal should be modified by reducing the bonus to 1 3/4 months basic wages. | 1[ds]7. There can be no doubt about the soundness of this contention. Whether or not the employer will find it possible or practicable to adjust in accordance with the terms of the settlement any amount by which the bonus awarded by the Tribunal is ultimately reduced is of no relevance on the question as to what the correct amount of bonus is. It may even be that the employer may not think it wise or politic to try to insist on the terms of the settlement. That, however, is a matter entirely for the employer. When the parties come before a judicial or aTribunal for decision of a dispute the Tribunal is bound to give its decision irrespective of the fact whether the order made in favour of either party will be capable of execution or not. In our opinion, the Appellate Tribunal was bound to make its own assessment of the bonus, once it came to the conclusion that the workmen were not entitled to the bonus awarded by the first Tribunal.8. It is therefore necessary for this court to calculate what the bonus, if any, should be. For this purpose it is necessary first to consider the challenge of the employers to the correctness of the figures taken as the multipliers and divisors. A considerable volume of evidence was adduced by the employer for a proper conclusion on the facts which fall to be considered on these questions. The Tribunal arrived at its conclusion, as already stated, after a detailed consideration of that evidence. The Appellate Tribunal has accepted these findings. The mere fact that the Appellate Tribunal has not discussed the evidence in detail would not justify us in thinking that the matter was not properly considered by it. It is interesting to note that the Appellate Tribunal in its order has mentioned that the attempt to challenge the award of the Tribunal on the point of multipliers and the age of the machinery and buildings was aone. Whether or not it was so, we are satisfied that the Appellate Tribunal agreed with the conclusion of the Tribunal on the point of multipliers and divisors after applying its own mind to the evidence. There is nothing therefore that would justify us in interfering with its conclusions as regards multipliers and divisors.9. On the question whether the Tribunal was justified in allowing only 4 % as the rate of return on the paid up capital the appellate Tribunal after setting out the reasons mentioned by the tribunal for its view stated "In arguments the reasons given by the Industrial Tribunal for allowing return on paid up capital at Rs. 4 per cent per annum were not disputed." It is not said before us that the appellate Tribunal was wrong in making this statement . An attempt was made to explain away with this statement by saying that what the Appellate Tribunal wanted to say was that the correctness of the fact mentioned by the Tribunal in respect of its conclusion that the rate of interest was 4 % was not challenged. We see no reason to put such a strained interpretation on the words used by the Appellate Tribunal and think that when the Appellate Tribunal says that the reasons given by the Industrial Tribunal for allowing return on paid up capital at 4 per cent per annum were not disputed, they mean to say that the correctness of the reasoning was not disputed. In that view, we cannot allow the appellant to raise the question of rate of return on paid up capital before us.10. As already stated, the Appellate Tribunal held that the first Tribunal was in error in allowing return at the rate of 2 per cent. per annum on the reserves used as working capital and the rate of 4 per cent. should be allowed. The Appellate Tribunal was clearly right in this and the correctness of this conclusion is not disputed before us on behalf of the workmen.11. We therefore reach the position that the available surplus which was assessed by the Tribunal at Rs. 11,53,589 has to be reduced by the sum of Rs. 4,88,214.12. That then is the surplus out of which the bonus is to be paid. Once bonus is paid the employer would obtain a rebate onin respect of the bonus. The process applied by the Appellate Tribunal of adding back the amount expected as rebate onin arriving at the amount of available surplus is however not only confusing but erroneous.13. The fact that on bonus being paid the employer would be entitled to a rebate onis certainly a very important consideration which has to be taken into account before the final amount of the bonus is decided upon. As has often been pointed out and recently reiterated in Associated Cement Co., Ltd. v. Its Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ), the Tribunal in deciding on the question of bonus to be given to workmen has to bear in mind that the Industry and the employer are also entitled to a fair share of the benefit derivable, by reason of the emergence of the surplus. It is in this connection that the amount available as abatement asin respect of the bonus awarded comes into picture. The proper approach to the question is to decide first on a tentative figure for bonus, after taking into consideration the wage structure of the Industry and other relevant matters and then to see after taking into consideration the amount receivable as rebate onhow the share of the workmen on the one hand and the Industry and the employer on the other compare. If the tentative figure gives a fair share to both sides, that should be adopted as the final figure. If the tentative basis does not result in a fair division, another basis should be attempted, and so on, until a figure which results in a fair division is reached.14. It has to be mentioned first that we have not got the benefit in the present case of any evidence as regards the comparative position of the wage structure in these factories as compared to other industries in the neighborhood or as regards any of the other matters which have to be taken into consideration in deciding whether the share of the workmen should be small or large. In the absence of any such evidence we consider it proper that the bonus should be fixed at a figure which will have the result of giving the workmen on the one hand and the Industry and the employer on the other more or less equal benefit. We find that on reduction by Rs. 4,88,214, for the reasons mentioned above, the available surplus on the application of the Full Bench Formula stands at Rs. 6,65,375. The monthly wage bill at the relevant time is stated to be in the neighborhood of Rs. 2,40,000. If two months basic wages be given as bonus the workmen would benefit to the extent of Rs. 4,80,000 while the benefit to the Industry and employer would be Rs. 1,85,375 plus Rs. 2,10,000 received as rebate oni.e., Rs. 3,95,375. That would give an unduly large share to workmen. If a bonus equivalent to 1 3/4 months basic wages be awarded so that the workmen would benefit to the extent of Rs. 4,20,000 the share of the Industry and the employer would work out at Rs. 2,45,375 plus Rs. 1,83,750, i.e., Rs. 4,29,125. This appears to be reasonable.15. We have therefore come to the conclusion that the award given by the Industrial Tribunal and confirmed by the Appellate Tribunal should be modified by reducing the bonus to 1 3/4 months basic wages. | 1 | 2,307 | 1,376 | ### 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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Appellate Tribunal in its order has mentioned that the attempt to challenge the award of the Tribunal on the point of multipliers and the age of the machinery and buildings was a half-hearted one. Whether or not it was so, we are satisfied that the Appellate Tribunal agreed with the conclusion of the Tribunal on the point of multipliers and divisors after applying its own mind to the evidence. There is nothing therefore that would justify us in interfering with its conclusions as regards multipliers and divisors.9. On the question whether the Tribunal was justified in allowing only 4 % as the rate of return on the paid up capital the appellate Tribunal after setting out the reasons mentioned by the tribunal for its view stated "In arguments the reasons given by the Industrial Tribunal for allowing return on paid up capital at Rs. 4 per cent per annum were not disputed." It is not said before us that the appellate Tribunal was wrong in making this statement . An attempt was made to explain away with this statement by saying that what the Appellate Tribunal wanted to say was that the correctness of the fact mentioned by the Tribunal in respect of its conclusion that the rate of interest was 4 % was not challenged. We see no reason to put such a strained interpretation on the words used by the Appellate Tribunal and think that when the Appellate Tribunal says that the reasons given by the Industrial Tribunal for allowing return on paid up capital at 4 per cent per annum were not disputed, they mean to say that the correctness of the reasoning was not disputed. In that view, we cannot allow the appellant to raise the question of rate of return on paid up capital before us.10. As already stated, the Appellate Tribunal held that the first Tribunal was in error in allowing return at the rate of 2 per cent. per annum on the reserves used as working capital and the rate of 4 per cent. should be allowed. The Appellate Tribunal was clearly right in this and the correctness of this conclusion is not disputed before us on behalf of the workmen.11. We therefore reach the position that the available surplus which was assessed by the Tribunal at Rs. 11,53,589 has to be reduced by the sum of Rs. 4,88,214.12. That then is the surplus out of which the bonus is to be paid. Once bonus is paid the employer would obtain a rebate on income-tax in respect of the bonus. The process applied by the Appellate Tribunal of adding back the amount expected as rebate on income-tax in arriving at the amount of available surplus is however not only confusing but erroneous.13. The fact that on bonus being paid the employer would be entitled to a rebate on income-tax is certainly a very important consideration which has to be taken into account before the final amount of the bonus is decided upon. As has often been pointed out and recently reiterated in Associated Cement Co., Ltd. v. Its Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ), the Tribunal in deciding on the question of bonus to be given to workmen has to bear in mind that the Industry and the employer are also entitled to a fair share of the benefit derivable, by reason of the emergence of the surplus. It is in this connection that the amount available as abatement as income-tax in respect of the bonus awarded comes into picture. The proper approach to the question is to decide first on a tentative figure for bonus, after taking into consideration the wage structure of the Industry and other relevant matters and then to see after taking into consideration the amount receivable as rebate on income-tax how the share of the workmen on the one hand and the Industry and the employer on the other compare. If the tentative figure gives a fair share to both sides, that should be adopted as the final figure. If the tentative basis does not result in a fair division, another basis should be attempted, and so on, until a figure which results in a fair division is reached.14. It has to be mentioned first that we have not got the benefit in the present case of any evidence as regards the comparative position of the wage structure in these factories as compared to other industries in the neighborhood or as regards any of the other matters which have to be taken into consideration in deciding whether the share of the workmen should be small or large. In the absence of any such evidence we consider it proper that the bonus should be fixed at a figure which will have the result of giving the workmen on the one hand and the Industry and the employer on the other more or less equal benefit. We find that on reduction by Rs. 4,88,214, for the reasons mentioned above, the available surplus on the application of the Full Bench Formula stands at Rs. 6,65,375. The monthly wage bill at the relevant time is stated to be in the neighborhood of Rs. 2,40,000. If two months basic wages be given as bonus the workmen would benefit to the extent of Rs. 4,80,000 while the benefit to the Industry and employer would be Rs. 1,85,375 plus Rs. 2,10,000 received as rebate on income-tax, i.e., Rs. 3,95,375. That would give an unduly large share to workmen. If a bonus equivalent to 1 3/4 months basic wages be awarded so that the workmen would benefit to the extent of Rs. 4,20,000 the share of the Industry and the employer would work out at Rs. 2,45,375 plus Rs. 1,83,750, i.e., Rs. 4,29,125. This appears to be reasonable.15. We have therefore come to the conclusion that the award given by the Industrial Tribunal and confirmed by the Appellate Tribunal should be modified by reducing the bonus to 1 3/4 months basic wages.
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was not properly considered by it. It is interesting to note that the Appellate Tribunal in its order has mentioned that the attempt to challenge the award of the Tribunal on the point of multipliers and the age of the machinery and buildings was aone. Whether or not it was so, we are satisfied that the Appellate Tribunal agreed with the conclusion of the Tribunal on the point of multipliers and divisors after applying its own mind to the evidence. There is nothing therefore that would justify us in interfering with its conclusions as regards multipliers and divisors.9. On the question whether the Tribunal was justified in allowing only 4 % as the rate of return on the paid up capital the appellate Tribunal after setting out the reasons mentioned by the tribunal for its view stated "In arguments the reasons given by the Industrial Tribunal for allowing return on paid up capital at Rs. 4 per cent per annum were not disputed." It is not said before us that the appellate Tribunal was wrong in making this statement . An attempt was made to explain away with this statement by saying that what the Appellate Tribunal wanted to say was that the correctness of the fact mentioned by the Tribunal in respect of its conclusion that the rate of interest was 4 % was not challenged. We see no reason to put such a strained interpretation on the words used by the Appellate Tribunal and think that when the Appellate Tribunal says that the reasons given by the Industrial Tribunal for allowing return on paid up capital at 4 per cent per annum were not disputed, they mean to say that the correctness of the reasoning was not disputed. In that view, we cannot allow the appellant to raise the question of rate of return on paid up capital before us.10. As already stated, the Appellate Tribunal held that the first Tribunal was in error in allowing return at the rate of 2 per cent. per annum on the reserves used as working capital and the rate of 4 per cent. should be allowed. The Appellate Tribunal was clearly right in this and the correctness of this conclusion is not disputed before us on behalf of the workmen.11. We therefore reach the position that the available surplus which was assessed by the Tribunal at Rs. 11,53,589 has to be reduced by the sum of Rs. 4,88,214.12. That then is the surplus out of which the bonus is to be paid. Once bonus is paid the employer would obtain a rebate onin respect of the bonus. The process applied by the Appellate Tribunal of adding back the amount expected as rebate onin arriving at the amount of available surplus is however not only confusing but erroneous.13. The fact that on bonus being paid the employer would be entitled to a rebate onis certainly a very important consideration which has to be taken into account before the final amount of the bonus is decided upon. As has often been pointed out and recently reiterated in Associated Cement Co., Ltd. v. Its Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ), the Tribunal in deciding on the question of bonus to be given to workmen has to bear in mind that the Industry and the employer are also entitled to a fair share of the benefit derivable, by reason of the emergence of the surplus. It is in this connection that the amount available as abatement asin respect of the bonus awarded comes into picture. The proper approach to the question is to decide first on a tentative figure for bonus, after taking into consideration the wage structure of the Industry and other relevant matters and then to see after taking into consideration the amount receivable as rebate onhow the share of the workmen on the one hand and the Industry and the employer on the other compare. If the tentative figure gives a fair share to both sides, that should be adopted as the final figure. If the tentative basis does not result in a fair division, another basis should be attempted, and so on, until a figure which results in a fair division is reached.14. It has to be mentioned first that we have not got the benefit in the present case of any evidence as regards the comparative position of the wage structure in these factories as compared to other industries in the neighborhood or as regards any of the other matters which have to be taken into consideration in deciding whether the share of the workmen should be small or large. In the absence of any such evidence we consider it proper that the bonus should be fixed at a figure which will have the result of giving the workmen on the one hand and the Industry and the employer on the other more or less equal benefit. We find that on reduction by Rs. 4,88,214, for the reasons mentioned above, the available surplus on the application of the Full Bench Formula stands at Rs. 6,65,375. The monthly wage bill at the relevant time is stated to be in the neighborhood of Rs. 2,40,000. If two months basic wages be given as bonus the workmen would benefit to the extent of Rs. 4,80,000 while the benefit to the Industry and employer would be Rs. 1,85,375 plus Rs. 2,10,000 received as rebate oni.e., Rs. 3,95,375. That would give an unduly large share to workmen. If a bonus equivalent to 1 3/4 months basic wages be awarded so that the workmen would benefit to the extent of Rs. 4,20,000 the share of the Industry and the employer would work out at Rs. 2,45,375 plus Rs. 1,83,750, i.e., Rs. 4,29,125. This appears to be reasonable.15. We have therefore come to the conclusion that the award given by the Industrial Tribunal and confirmed by the Appellate Tribunal should be modified by reducing the bonus to 1 3/4 months basic wages.
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Kosha Investments Ltd Vs. Securities & Exchange Bd Of India | exceed 25 per cent.6. It will be relevant at this stage to extract Regulations 11(1), 13, 14(1) and 14(2) in order to appreciate the submissions.These read as follows : “11. (1) No acquirer who, together with persons acting in concert with him, has acquired, in accordance with the provisions of law, 15 per cent or more but less than fifty five per cent (55%) of the shares or voting rights in a company, shall acquire, either by himself or through or with persons acting in concert with him, additional shares or voting rights entitling him to exercise more than 5 per cent of the voting rights, in any financial year ending on 31st March unless such acquirer makes a public announcement to acquire shares in accordance with the regulations.12. …. …. …. ….13. Before making any public announcement of offer referred to in regulation 10 or regulation 11 or regulation 12, the acquirer shall appoint a merchant banker in Category I holding a certificate of registration granted by the Board, who is not an associate of or group of the acquirer or the target company.14. (1) The public announcement referred to in regulation 10 or regulation 11 shall be made by the merchant banker not later than four working days of entering into an agreement for acquisition of shares or voting rights or deciding to acquire shares or voting rights exceeding the respective percentage specified therein:Provided that in case of disinvestment of a Public Sector Undertaking, the public announcement shall be made by the merchant banker not later than 4 working days of the acquirer executing the Share Purchase Agreement or Shareholders Agreement with the Central Government or the State Government as the case may be, for the acquisition of shares or voting rights exceeding the percentage of shareholding referred to in regulation 10 or regulation 11 or the transfer of control over a target Public Sector Undertaking.(2) In the case of an acquirer acquiring securities, including Global Depository Receipts or American Depository Receipts which, when taken together with the voting rights, if any already held by him or persons acting in concert with him, would entitle him to voting rights, exceeding the percentage specified in regulation 10 or regulation 11, the public announcement referred to in sub-regulation (1) shall be made not later than four working days before he acquires voting rights on such securities upon conversion, or exercise of option, as the case may be.” 7. A careful reading of the aforesaid Regulations discloses that the public announcement should not be delayed beyond four working days of the agreement or decision to acquire the requisite number of shares or voting rights. We are in agreement with the finding of the Tribunal on this issue and find no merit in the contentions of the appellant. If the plea of appellant will be accepted then an acquirer can keep on violating Regulation 11(1) with impunity on as many occasions as he/it wants and avoid letting the public have the required knowledge through public announcements by simply making subsequent sale or transfer to another entity so as to reduce the so-called net acquisition in a financial year to within 5%. This interpretation will defeat the purpose of Regulation 11(1) and shall also render Regulation 14(1) otiose. The concept of permitting creeping acquisitions by permitting not more than 5% of the shares or voting rights in a company limits the period for such acquisition to a financial year ending by 31st March. But such concept does not dilute the requirement of making a public announcement within the time mentioned in Regulation 14(1) if the acquisition even if only once made and divested, is of more than 5% of shares or voting rights in the target company. In other words, even if such acquisition is followed by sale in the same financial year, the liability of making the public announcement would remain unaffected and shall attract action, as in this case. 8. Hence, the main contention advanced on behalf of the appellant is found to be without any merit. The other contention is that Regulation 14(2) of the Regulations of 1997 postpones the time for required public announcement to acquisition of voting rights when purchased securities are actually converted. According to the contention, only when securities or shares are converted by the acquirer into voting rights by getting it registered or upon exercise of option to acquire voting rights, the liability of making public announcement can be fastened.9. Aforesaid plea has been rightly countered by learned Senior Advocate for SEBI, Mr. C.U. Singh by pointing out that in case of acquisition of shares or voting rights the appropriate applicable provision is Regulation 14(1) and not Regulation 14(2) which applies only when the acquisition is of other securities including Global Depository Receipts, American Depository Receipts. It is only such securities which require conversion or exercise of option which is contemplated by Regulation 14(2). He also pointed out that no such plea was raised before the SEBI or the Tribunal and rightly because in the present case only Regulation 14(1) is applicable as it covers acquisition of either the shares or the voting rights or both which are the subject matter of Regulation 11(1). Mr. Singh has also referred to a judgment of this Court in the case of Swedish Match AB and Another vs. Securities & Exchange Board of India and Another, (2004) 11 SCC 641. This judgment in paragraphs 90 onwards considered the purpose and effect of Regulations 10, 11 and 12 of the Regulations of 1997 and in paragraph 102 held them to be mandatory statutory provisions. However this judgment needs no elaborate consideration because no plea has been raised on behalf of appellant that the Regulations are directory or do not require compliance.10. We find that the plea that the matter at hand relates to Regulation 14(2) was not raised before the original authority or the Tribunal. We also find that it is a plea of desperation and undeserving of acceptance. | 0[ds]8. Hence, the main contention advanced on behalf of the appellant is found to be without any merit. The other contention is that Regulation 14(2) of the Regulations of 1997 postpones the time for required public announcement to acquisition of voting rights when purchased securities are actually converted. According to the contention, only when securities or shares are converted by the acquirer into voting rights by getting it registered or upon exercise of option to acquire voting rights, the liability of making public announcement can be fastened.9. Aforesaid plea has been rightly countered by learned Senior Advocate for SEBI, Mr. C.U. Singh by pointing out that in case of acquisition of shares or voting rights the appropriate applicable provision is Regulation 14(1) and not Regulation 14(2) which applies only when the acquisition is of other securities including Global Depository Receipts, American Depository Receipts. It is only such securities which require conversion or exercise of option which is contemplated by Regulation 14(2). He also pointed out that no such plea was raised before the SEBI or the Tribunal and rightly because in the present case only Regulation 14(1) is applicable as it covers acquisition of either the shares or the voting rights or both which are the subject matter of Regulation 11(1). Mr. Singh has also referred to a judgment of this Court in the case of Swedish Match AB and Another vs. Securities & Exchange Board of India and Another, (2004) 11 SCC 641. This judgment in paragraphs 90 onwards considered the purpose and effect of Regulations 10, 11 and 12 of the Regulations of 1997 and in paragraph 102 held them to be mandatory statutory provisions. However this judgment needs no elaborate consideration because no plea has been raised on behalf of appellant that the Regulations are directory or do not require compliance.10. We find that the plea that the matter at hand relates to Regulation 14(2) was not raised before the original authority or the Tribunal. We also find that it is a plea of desperation and undeserving of acceptance. | 0 | 2,953 | 389 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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exceed 25 per cent.6. It will be relevant at this stage to extract Regulations 11(1), 13, 14(1) and 14(2) in order to appreciate the submissions.These read as follows : “11. (1) No acquirer who, together with persons acting in concert with him, has acquired, in accordance with the provisions of law, 15 per cent or more but less than fifty five per cent (55%) of the shares or voting rights in a company, shall acquire, either by himself or through or with persons acting in concert with him, additional shares or voting rights entitling him to exercise more than 5 per cent of the voting rights, in any financial year ending on 31st March unless such acquirer makes a public announcement to acquire shares in accordance with the regulations.12. …. …. …. ….13. Before making any public announcement of offer referred to in regulation 10 or regulation 11 or regulation 12, the acquirer shall appoint a merchant banker in Category I holding a certificate of registration granted by the Board, who is not an associate of or group of the acquirer or the target company.14. (1) The public announcement referred to in regulation 10 or regulation 11 shall be made by the merchant banker not later than four working days of entering into an agreement for acquisition of shares or voting rights or deciding to acquire shares or voting rights exceeding the respective percentage specified therein:Provided that in case of disinvestment of a Public Sector Undertaking, the public announcement shall be made by the merchant banker not later than 4 working days of the acquirer executing the Share Purchase Agreement or Shareholders Agreement with the Central Government or the State Government as the case may be, for the acquisition of shares or voting rights exceeding the percentage of shareholding referred to in regulation 10 or regulation 11 or the transfer of control over a target Public Sector Undertaking.(2) In the case of an acquirer acquiring securities, including Global Depository Receipts or American Depository Receipts which, when taken together with the voting rights, if any already held by him or persons acting in concert with him, would entitle him to voting rights, exceeding the percentage specified in regulation 10 or regulation 11, the public announcement referred to in sub-regulation (1) shall be made not later than four working days before he acquires voting rights on such securities upon conversion, or exercise of option, as the case may be.” 7. A careful reading of the aforesaid Regulations discloses that the public announcement should not be delayed beyond four working days of the agreement or decision to acquire the requisite number of shares or voting rights. We are in agreement with the finding of the Tribunal on this issue and find no merit in the contentions of the appellant. If the plea of appellant will be accepted then an acquirer can keep on violating Regulation 11(1) with impunity on as many occasions as he/it wants and avoid letting the public have the required knowledge through public announcements by simply making subsequent sale or transfer to another entity so as to reduce the so-called net acquisition in a financial year to within 5%. This interpretation will defeat the purpose of Regulation 11(1) and shall also render Regulation 14(1) otiose. The concept of permitting creeping acquisitions by permitting not more than 5% of the shares or voting rights in a company limits the period for such acquisition to a financial year ending by 31st March. But such concept does not dilute the requirement of making a public announcement within the time mentioned in Regulation 14(1) if the acquisition even if only once made and divested, is of more than 5% of shares or voting rights in the target company. In other words, even if such acquisition is followed by sale in the same financial year, the liability of making the public announcement would remain unaffected and shall attract action, as in this case. 8. Hence, the main contention advanced on behalf of the appellant is found to be without any merit. The other contention is that Regulation 14(2) of the Regulations of 1997 postpones the time for required public announcement to acquisition of voting rights when purchased securities are actually converted. According to the contention, only when securities or shares are converted by the acquirer into voting rights by getting it registered or upon exercise of option to acquire voting rights, the liability of making public announcement can be fastened.9. Aforesaid plea has been rightly countered by learned Senior Advocate for SEBI, Mr. C.U. Singh by pointing out that in case of acquisition of shares or voting rights the appropriate applicable provision is Regulation 14(1) and not Regulation 14(2) which applies only when the acquisition is of other securities including Global Depository Receipts, American Depository Receipts. It is only such securities which require conversion or exercise of option which is contemplated by Regulation 14(2). He also pointed out that no such plea was raised before the SEBI or the Tribunal and rightly because in the present case only Regulation 14(1) is applicable as it covers acquisition of either the shares or the voting rights or both which are the subject matter of Regulation 11(1). Mr. Singh has also referred to a judgment of this Court in the case of Swedish Match AB and Another vs. Securities & Exchange Board of India and Another, (2004) 11 SCC 641. This judgment in paragraphs 90 onwards considered the purpose and effect of Regulations 10, 11 and 12 of the Regulations of 1997 and in paragraph 102 held them to be mandatory statutory provisions. However this judgment needs no elaborate consideration because no plea has been raised on behalf of appellant that the Regulations are directory or do not require compliance.10. We find that the plea that the matter at hand relates to Regulation 14(2) was not raised before the original authority or the Tribunal. We also find that it is a plea of desperation and undeserving of acceptance.
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8. Hence, the main contention advanced on behalf of the appellant is found to be without any merit. The other contention is that Regulation 14(2) of the Regulations of 1997 postpones the time for required public announcement to acquisition of voting rights when purchased securities are actually converted. According to the contention, only when securities or shares are converted by the acquirer into voting rights by getting it registered or upon exercise of option to acquire voting rights, the liability of making public announcement can be fastened.9. Aforesaid plea has been rightly countered by learned Senior Advocate for SEBI, Mr. C.U. Singh by pointing out that in case of acquisition of shares or voting rights the appropriate applicable provision is Regulation 14(1) and not Regulation 14(2) which applies only when the acquisition is of other securities including Global Depository Receipts, American Depository Receipts. It is only such securities which require conversion or exercise of option which is contemplated by Regulation 14(2). He also pointed out that no such plea was raised before the SEBI or the Tribunal and rightly because in the present case only Regulation 14(1) is applicable as it covers acquisition of either the shares or the voting rights or both which are the subject matter of Regulation 11(1). Mr. Singh has also referred to a judgment of this Court in the case of Swedish Match AB and Another vs. Securities & Exchange Board of India and Another, (2004) 11 SCC 641. This judgment in paragraphs 90 onwards considered the purpose and effect of Regulations 10, 11 and 12 of the Regulations of 1997 and in paragraph 102 held them to be mandatory statutory provisions. However this judgment needs no elaborate consideration because no plea has been raised on behalf of appellant that the Regulations are directory or do not require compliance.10. We find that the plea that the matter at hand relates to Regulation 14(2) was not raised before the original authority or the Tribunal. We also find that it is a plea of desperation and undeserving of acceptance.
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State of Odisha & Ors Vs. Bichitrananda Das | 6 August 2008 and that the purported communication dated 19 April 2006 appears to be an ante-dated document. Be that as it may, it was urged that as a matter of principle it was not open to the respondent to claim that the conversion charges be computed on the basis of the rate prevalent on the date of the application. The application for conversion could be considered only in terms of the policy frame by the government and one of its conditions was that the applicant should not be in unauthorized occupation of government land.16. On the other hand, it has been urged by Mr Santosh Raut, learned counsel appearing on behalf of the respondent that, as a matter of fact, the case of the respondent was that there was no encroachment whatsoever on the land, which was clarified in the letters dated 19 April 2006 and 6 August 2008. Learned counsel submitted that, at the highest, only a plantation had been made outside the leasehold plot and this could not have been treated as an encroachment. Hence, it was urged on behalf of the respondent that where the State had taken an inordinately long time to consider the application, there was no justification or reason to saddle the respondent with the increased rates which were payable as on the date on which the decision was ultimately taken. Hence, it was further urged that the High Court was correct in coming to the conclusion that the rate as on the date of the application must be the governing rate for computing the conversion charges.17. In the recent decision of this Court in Chennai Metropolitan Developoment Authority (supra), this Court relied upon a line of precedents emanating from the Court, including the decisions in State of Tamil Nadu v Hind Stone (1981) 2 SCC 205 and Howrah Municipal Corporation v Ganges Rope Co Ltd (2004) 1 SCC 663. The submission of an application does not confer a vested right for permission. The applicant must comply with the terms of the policy. One of the terms in the policy in question is that the applicant should not have encroached on government land. An applicant who seeks the benefit of the policy must comply with its terms. In the present case, the policy which was formulated by the State government specifically contained a stipulation to the effect that a lessee, who had encroached upon or unauthorisedly occupied government land anywhere within Bhubaneswar Municipal Corporation limits would not be eligible to be covered by the scheme unless the unauthorised occupation is vacated.18. The record shows that on 13 May 2004, the Land Officer informed the respondent that he was unauthorisedly in occupation of land admeasuring 60? x 63? which had been covered by barbed wire fencing, which was being used for the purpose of a garden. The respondent addressed a communication on 6 August 2008, stating that he had already replied to the letter dated 13 May 2004 on 19 April 2006. The letter dated 19 April 2006 is carefully worded and states that ?no barbed wire fencing and ?no encroachment now exists?. Interestingly, a copy of the earlier letter dated 19 April 2006 was annexed to the communication dated 6 August 2008. However, the purported letter dated 19 April 2006 contains a statement that the respondent had been told that in a communication, which had not been received by him, he had been asked to vacate a portion of the government land, which had been occupied unauthorisedly with a barbed wire fencing. The contents of the letter dated 6 August 2008 do not square up with the purported communication dated 19 April 2006. Be that as it may, it is evident from the communications that it was his case that no encroachment existed ?at present?. Eventually, a notice to show cause had to be issued to the respondent under the Act on 28 December 2009. The State has placed on record a copy of the inspection report of 30 June 2010 which indicates that the encroachment had not been vacated. It was in this view of the matter that the State called upon the respondent to furnish a declaration that the encroachment had been removed and that he would not claim possession of the adjacent land even after conversion was allowed. Eventually, on 22 March 2014, it was stated that while an open plantation existed over the land, the plantation may not be treated as an encroachment.19. In this background, we are of the view that there was no justification for the High Court to direct that the rate for the computation of conversion charges should be that which was applicable on the submission of an application on 15 September 2003. The application for conversion from leasehold to freehold must necessarily be consistent with and compliant to the governing provisions of the policy which has been framed by the State government. Unless compliance is effected, there is no right to claim conversion of the land to freehold. Consequently, we are of the view that the High Court was in error in directing the State to recompute the conversion charges as on 15 September 2003. The respondent would necessarily have to pay the conversion charges on the date when a final decision was taken after due verification that there was no encroachment and after scrutinizing the declaration which was filed by the respondent.20. A period of nearly twelve years has elapsed in the meantime. It is significant that the respondent moved the writ proceedings before the High court only in 2015. If the grievance of the respondent was that the State had not taken any action on his representations, he ought to have moved the writ proceedings at an earlier point of time seeking a decision on his application. Having himself waited until 2015 to seek a declaration from the High Court, the respondent cannot claim that the conversion charges should be fixed as on the date of the application, namely, 15 September 2003. | 1[ds]18. The record shows that on 13 May 2004, the Land Officer informed the respondent that he was unauthorisedly in occupation of land admeasuring 60? x 63? which had been covered by barbed wire fencing, which was being used for the purpose of a garden. The respondent addressed a communication on 6 August 2008, stating that he had already replied to the letter dated 13 May 2004 on 19 April 2006. The letter dated 19 April 2006 is carefully worded and states that ?no barbed wire fencing and ?no encroachment now exists?. Interestingly, a copy of the earlier letter dated 19 April 2006 was annexed to the communication dated 6 August 2008. However, the purported letter dated 19 April 2006 contains a statement that the respondent had been told that in a communication, which had not been received by him, he had been asked to vacate a portion of the government land, which had been occupied unauthorisedly with a barbed wire fencing. The contents of the letter dated 6 August 2008 do not square up with the purported communication dated 19 April 2006. Be that as it may, it is evident from the communications that it was his case that no encroachment existed ?at present?. Eventually, a notice to show cause had to be issued to the respondent under the Act on 28 December 2009. The State has placed on record a copy of the inspection report of 30 June 2010 which indicates that the encroachment had not been vacated. It was in this view of the matter that the State called upon the respondent to furnish a declaration that the encroachment had been removed and that he would not claim possession of the adjacent land even after conversion was allowed. Eventually, on 22 March 2014, it was stated that while an open plantation existed over the land, the plantation may not be treated as an encroachment19. In this background, we are of the view that there was no justification for the High Court to direct that the rate for the computation of conversion charges should be that which was applicable on the submission of an application on 15 September 2003. The application for conversion from leasehold to freehold must necessarily be consistent with and compliant to the governing provisions of the policy which has been framed by the State government. Unless compliance is effected, there is no right to claim conversion of the land to freehold. Consequently, we are of the view that the High Court was in error in directing the State to recompute the conversion charges as on 15 September 2003. The respondent would necessarily have to pay the conversion charges on the date when a final decision was taken after due verification that there was no encroachment and after scrutinizing the declaration which was filed by the respondent20. A period of nearly twelve years has elapsed in the meantime. It is significant that the respondent moved the writ proceedings before the High court only in 2015. If the grievance of the respondent was that the State had not taken any action on his representations, he ought to have moved the writ proceedings at an earlier point of time seeking a decision on his application. Having himself waited until 2015 to seek a declaration from the High Court, the respondent cannot claim that the conversion charges should be fixed as on the date of the application, namely, 15 September 2003. | 1 | 2,643 | 626 | ### Instruction:
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6 August 2008 and that the purported communication dated 19 April 2006 appears to be an ante-dated document. Be that as it may, it was urged that as a matter of principle it was not open to the respondent to claim that the conversion charges be computed on the basis of the rate prevalent on the date of the application. The application for conversion could be considered only in terms of the policy frame by the government and one of its conditions was that the applicant should not be in unauthorized occupation of government land.16. On the other hand, it has been urged by Mr Santosh Raut, learned counsel appearing on behalf of the respondent that, as a matter of fact, the case of the respondent was that there was no encroachment whatsoever on the land, which was clarified in the letters dated 19 April 2006 and 6 August 2008. Learned counsel submitted that, at the highest, only a plantation had been made outside the leasehold plot and this could not have been treated as an encroachment. Hence, it was urged on behalf of the respondent that where the State had taken an inordinately long time to consider the application, there was no justification or reason to saddle the respondent with the increased rates which were payable as on the date on which the decision was ultimately taken. Hence, it was further urged that the High Court was correct in coming to the conclusion that the rate as on the date of the application must be the governing rate for computing the conversion charges.17. In the recent decision of this Court in Chennai Metropolitan Developoment Authority (supra), this Court relied upon a line of precedents emanating from the Court, including the decisions in State of Tamil Nadu v Hind Stone (1981) 2 SCC 205 and Howrah Municipal Corporation v Ganges Rope Co Ltd (2004) 1 SCC 663. The submission of an application does not confer a vested right for permission. The applicant must comply with the terms of the policy. One of the terms in the policy in question is that the applicant should not have encroached on government land. An applicant who seeks the benefit of the policy must comply with its terms. In the present case, the policy which was formulated by the State government specifically contained a stipulation to the effect that a lessee, who had encroached upon or unauthorisedly occupied government land anywhere within Bhubaneswar Municipal Corporation limits would not be eligible to be covered by the scheme unless the unauthorised occupation is vacated.18. The record shows that on 13 May 2004, the Land Officer informed the respondent that he was unauthorisedly in occupation of land admeasuring 60? x 63? which had been covered by barbed wire fencing, which was being used for the purpose of a garden. The respondent addressed a communication on 6 August 2008, stating that he had already replied to the letter dated 13 May 2004 on 19 April 2006. The letter dated 19 April 2006 is carefully worded and states that ?no barbed wire fencing and ?no encroachment now exists?. Interestingly, a copy of the earlier letter dated 19 April 2006 was annexed to the communication dated 6 August 2008. However, the purported letter dated 19 April 2006 contains a statement that the respondent had been told that in a communication, which had not been received by him, he had been asked to vacate a portion of the government land, which had been occupied unauthorisedly with a barbed wire fencing. The contents of the letter dated 6 August 2008 do not square up with the purported communication dated 19 April 2006. Be that as it may, it is evident from the communications that it was his case that no encroachment existed ?at present?. Eventually, a notice to show cause had to be issued to the respondent under the Act on 28 December 2009. The State has placed on record a copy of the inspection report of 30 June 2010 which indicates that the encroachment had not been vacated. It was in this view of the matter that the State called upon the respondent to furnish a declaration that the encroachment had been removed and that he would not claim possession of the adjacent land even after conversion was allowed. Eventually, on 22 March 2014, it was stated that while an open plantation existed over the land, the plantation may not be treated as an encroachment.19. In this background, we are of the view that there was no justification for the High Court to direct that the rate for the computation of conversion charges should be that which was applicable on the submission of an application on 15 September 2003. The application for conversion from leasehold to freehold must necessarily be consistent with and compliant to the governing provisions of the policy which has been framed by the State government. Unless compliance is effected, there is no right to claim conversion of the land to freehold. Consequently, we are of the view that the High Court was in error in directing the State to recompute the conversion charges as on 15 September 2003. The respondent would necessarily have to pay the conversion charges on the date when a final decision was taken after due verification that there was no encroachment and after scrutinizing the declaration which was filed by the respondent.20. A period of nearly twelve years has elapsed in the meantime. It is significant that the respondent moved the writ proceedings before the High court only in 2015. If the grievance of the respondent was that the State had not taken any action on his representations, he ought to have moved the writ proceedings at an earlier point of time seeking a decision on his application. Having himself waited until 2015 to seek a declaration from the High Court, the respondent cannot claim that the conversion charges should be fixed as on the date of the application, namely, 15 September 2003.
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18. The record shows that on 13 May 2004, the Land Officer informed the respondent that he was unauthorisedly in occupation of land admeasuring 60? x 63? which had been covered by barbed wire fencing, which was being used for the purpose of a garden. The respondent addressed a communication on 6 August 2008, stating that he had already replied to the letter dated 13 May 2004 on 19 April 2006. The letter dated 19 April 2006 is carefully worded and states that ?no barbed wire fencing and ?no encroachment now exists?. Interestingly, a copy of the earlier letter dated 19 April 2006 was annexed to the communication dated 6 August 2008. However, the purported letter dated 19 April 2006 contains a statement that the respondent had been told that in a communication, which had not been received by him, he had been asked to vacate a portion of the government land, which had been occupied unauthorisedly with a barbed wire fencing. The contents of the letter dated 6 August 2008 do not square up with the purported communication dated 19 April 2006. Be that as it may, it is evident from the communications that it was his case that no encroachment existed ?at present?. Eventually, a notice to show cause had to be issued to the respondent under the Act on 28 December 2009. The State has placed on record a copy of the inspection report of 30 June 2010 which indicates that the encroachment had not been vacated. It was in this view of the matter that the State called upon the respondent to furnish a declaration that the encroachment had been removed and that he would not claim possession of the adjacent land even after conversion was allowed. Eventually, on 22 March 2014, it was stated that while an open plantation existed over the land, the plantation may not be treated as an encroachment19. In this background, we are of the view that there was no justification for the High Court to direct that the rate for the computation of conversion charges should be that which was applicable on the submission of an application on 15 September 2003. The application for conversion from leasehold to freehold must necessarily be consistent with and compliant to the governing provisions of the policy which has been framed by the State government. Unless compliance is effected, there is no right to claim conversion of the land to freehold. Consequently, we are of the view that the High Court was in error in directing the State to recompute the conversion charges as on 15 September 2003. The respondent would necessarily have to pay the conversion charges on the date when a final decision was taken after due verification that there was no encroachment and after scrutinizing the declaration which was filed by the respondent20. A period of nearly twelve years has elapsed in the meantime. It is significant that the respondent moved the writ proceedings before the High court only in 2015. If the grievance of the respondent was that the State had not taken any action on his representations, he ought to have moved the writ proceedings at an earlier point of time seeking a decision on his application. Having himself waited until 2015 to seek a declaration from the High Court, the respondent cannot claim that the conversion charges should be fixed as on the date of the application, namely, 15 September 2003.
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State Of Maharashtra Vs. Indian Hotel & Retaurants Assn | with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression “any kind or type” of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B. 122. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability. Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A. 123. In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as follows : (1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being granted. 124. Despite the directions made by the State Government, the authorities have not taken steps to implement the recommendations which have been submitted by AHAR. On the contrary, the impugned legislation was enacted in 2005. In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls. In similar circumstances, this Court in the case of Anuj Garg (supra) had made certain observations indicating that instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. 125. | 0[ds]The High Court rejected the challenge to the impugned Act on the ground that the State legislature was not competent to enact the amendment. The argument was rejected on the ground that the amendment is substantially covered by Entries 2, 8, 33 and 64 of List II. The High Court further observed that there is no repugnancy between the powers conferred on the Centre and the State under Schedule 7 List II and III of the Constitution of India. The High Court also rejected the submissions that the proviso to Section 33A (2) amounts to interference with the independence of the judiciary on the ground that the legislature is empowered to regulate sentencing by enactment of appropriate legislation. Such exercise of legislative power is not uncommon and would not interfere with the judicial power in conducting trial and rendering the necessary judgment as to whether the guilt has been proved or not. The submission that the affidavit filed by Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered because it was not verified in accordance with law was rejected with the observations that incorrect verification is curable and steps have been taken to cure the same. The submissions made in Writ Petition 2450 of 2005 that the amendment would not apply to eating houses and would, therefore, not be applicable in the establishments of the petitioners therein was also rejected. It was held that theincludes eating houses which serve alcohol for public consumption. It was further observed that the amendment covered even those areas in such eating houses where alcohol was not served. The High Court also rejected the challenge to the amendment that the same is in violation of Article 15(1) of the Constitution of India. It has been observed that dancing was not prohibited in the establishments covered under Section 33B only on the ground of sex. What is being prohibited is dancing in identified establishments. The Act prohibits all types of dance in banned establishments by any person or persons. There being no discrimination on the basis of gender, the Act cannot be said to violate Article 15(1) of the Constitution.88. The High Court has even rejected the challenge to the impugned amendment on the ground that the ban amounts to an unreasonable restriction, on the fundamental right of the bar owners and bar dancers, of freedom of speech and expression guaranteed under Article 19(1)(a). The submission was rejected by applying the doctrine of pith and substance. It has been held by the High Court that dance performed by the bar dancers can not fall within the termof speech andas the activities of the dancers are mainly to earn their livelihood by engaging in a trade or occupation. Similarly, the submission that the provision in Section 33A was ultra vires Article 21 of the Constitution of India was rejected, in view of the ratio of this Court, in the case of Sodan Singh & Ors. Vs. New Delhi Municipal Committee & Ors. [(1989) 4 SCC 155] wherein it is observed as followsdo not find any merit in the argument founded on Article 21 of the Constitution. In our opinion, Article 21 is not attracted in a case of trade or business – either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connectedHigh Court has held that the classification under Sections 33A and 33B was rational because the type of dance performed in the establishments allowed them to be separated into two distinct classes. It is further observed that the classification does not need to be scientifically perfect or logically complete.96. The High Court has, however, concluded that classification by itself is not sufficient to relieve a statute from satisfying the mandate of the equality clause of Article 14. The amendment has been nullified on the second limb of the twin test to be satisfied under Article 14 of the Constitution of India that the amendment has no nexus with the object sought to be achieved. Mr. Subramanium had emphasised that the impugned enactment is based on consideration of different factors, which would justify the classification. We have earlier noticed the elaborate reasons given by Mr. Subramanium to show that the dance performed in the banned establishments itself takes a form of sexual propositioning. There is revenue sharing generated by the tips received by the dancers. He had also emphasised that in the banned establishment women, who dance are not professional dancers. They are mostly trafficked into dancing. Dancing, according to him, is chosen as a profession of last resort, when the girl is left with no other option. On the other hand, dancers performing in the exempted classes are highly acclaimed and established performer. They are economically independent. Such performers are not vulnerable and, therefore, there is least likelihood of any indecency, immorality or depravity. He had emphasised that classification to be valid under Article 14 need not necessarily fall within an exact or scientific formula for exclusion or inclusion of persons orour opinion, the appellants herein have failed to satisfy the aforesaid test laid down by this court. The Counsel for the appellant had, however, sought to highlight before us the unhealthy practice of the customers showering money on the dancers during the performance, in the prohibited establishments. This encourages the girls to indulge in unhealthy competition to create and sustain sexual interest of the most favoured customers. But such kind of behaviour is absent when the dancers are performing in the exempted establishments. It was again emphasised that it is not only the activities performed in the establishments covered under Section 33 A, but also the surrounding circumstances which are calculated to produce an illusion of easy access to women. The customers who would be inebriated would pay little heed to the dignity or lack of consent of the women. This conclusion is sought to be supported by a number of complaints received and as well as case histories of girl children rescued from the dance bars. We are again not satisfied that the conclusions reached by the state are based on any rational criteria. We fail to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. Rather it is evident that the same dancer can perform the same dance in the high class hotels, clubs, and gymkhanas but is prohibited of doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the state is illustrated by the fact that an infringement of section 33A(1) by an establishment covered under the aforesaid provision would entail the owner being liable to be imprisoned for three years by virtue of section 33A(2). On the other hand, no such punishment is prescribed for establishments covered under Section 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Article 14 of the Constitution ofHigh Court, in our opinion, has rightly declined to rely upon the Prayas and Shubhadareport. The number of respondents interviewed was so miniscule as to render both the studies meaningless. As noticed earlier, the subsequent report submitted by SNDT University has substantially contradicted the conclusions reached by the other two reports. The situation herein was not similar to the circumstances which led to the decision in the case of Radice (supra). In that case, a New York Statute was challenged as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p.m. and 6 a.m., on the ground of (1) due process clause, by depriving the employer and employee of their liberty to contract, and (2) the equal protection clause by an unreasonable and arbitrary classification. The Court upheld the legislation on the first ground that the State had come to the conclusion that night work prohibited, so injuriously threatens to impairpeculiar and natural functions. Such work, according to the State, exposes women to the dangers and menaces incidental to night life in large cities. Therefore, it was permissible to enable the police to preserve and promote the public health and welfare. The aforesaid conclusion was, however, based on one very important factor which was thatlegislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health ofIn our opinion, as pointed out by the learned counsel for the respondents, in the present case, there was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality orare of the opinion that the State has failed to justify the classification between the exempted establishments and prohibited establishments on the basis of surrounding circumstances; or vulnerability. Undoubtedly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty bound to disclose the reasons for the ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality in the dance bars. Such a presumption is abhorrent to the resolve in the Preamble of the Constitution to secure the citizens of India.of status and opportunity and dignity of theThe State Government presumed that the performance of an identical dance item in the establishments having facilities less than 3 stars would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals; but would not be so in the exempted establishments. These are misconceived motions of a bygone era which ought not to beare undoubtedly bound by the principles enunciated by this Court in the aforesaid cases, but these are not applicable to the facts and circumstances of the present case. In Khoday Distilleries Ltd. (supra), it was held that there is no fundamental right inter alia to do trafficking in women or in slaves or to carry on business of exhibiting and publishing pornographic or obscene films and literature. This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority (supra) is completely unfounded because in that case endeavour of the State was directed towards prohibiting topless dancing in an establishment licensed to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with indecent performances in a disorderly house. Hence, this case will also not help the appellants. Therefore, we are not impressed with any of these submissions. All the activities mentioned above can be controlled under the existing regulations.119. We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expressionof dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Sectionour opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as followsBar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being | 0 | 30,327 | 2,930 | ### Instruction:
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with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression “any kind or type” of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B. 122. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability. Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A. 123. In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as follows : (1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being granted. 124. Despite the directions made by the State Government, the authorities have not taken steps to implement the recommendations which have been submitted by AHAR. On the contrary, the impugned legislation was enacted in 2005. In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls. In similar circumstances, this Court in the case of Anuj Garg (supra) had made certain observations indicating that instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. 125.
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would be likely to deprave, corrupt or injure public morality or morals; but would not be so in the exempted establishments. These are misconceived motions of a bygone era which ought not to beare undoubtedly bound by the principles enunciated by this Court in the aforesaid cases, but these are not applicable to the facts and circumstances of the present case. In Khoday Distilleries Ltd. (supra), it was held that there is no fundamental right inter alia to do trafficking in women or in slaves or to carry on business of exhibiting and publishing pornographic or obscene films and literature. This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority (supra) is completely unfounded because in that case endeavour of the State was directed towards prohibiting topless dancing in an establishment licensed to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with indecent performances in a disorderly house. Hence, this case will also not help the appellants. Therefore, we are not impressed with any of these submissions. All the activities mentioned above can be controlled under the existing regulations.119. We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expressionof dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Sectionour opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as followsBar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being
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Commissioner Of Income-Tax, Bombay Vs. M/S. Amritlal Bhogilal & Co | that the Commissioner had no authority to set aside the registration order passed by the Income-tax Officer granting registration to the respondent for the years 1947-48 and 1948-1949.16. The case in regard to the subsequent year 1949-50 presents no difficulty. The appeal preferred by the respondent against the Income-tax Officers assessment order in respect of this year was pending at the material time before the Appellate Assistant. Commissioner; and so no question of merger arose in respect of the order granting renewal of registration for this period. There can be no doubt even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law. It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order under appeal. The High Court, however, appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons. It was also assumed by the High Court that, in the pending appeal, the department would have an alternative remedy because, according to the High Court, the department could have challenged the validity or the propriety of the respondents registration and could have asked the Appellate Assistant Commissioner to cancel it. As we have already pointed out, the department could not challenge the validity of the registration order in the assessees appeal before the appellate authority and so the argument that the department had an alternative remedy is not correct. It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion. Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material.Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of S. 33-B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power.We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the year 1949-50. The result is that the view taken by the High Court must be reversed and the first question framed by the tribunal as well as the additional question framed by the High Court must be answered in favour of the appellant.17. Then there remain two other questions which were framed by the tribunal but have not been considered by the High Court. The learned counsel appearing for both the parties agree that we need not remit these two questions to the High Court with the direction that the High Court should deal with them in accordance with law; it has been conceded before us that, if the principal question about the Commissioners power under S. 33B (1) to cancel the respondents registration is answered in favour of the appellant, then the two remaining questions would become academic and answers to them would also have to be in favour of the appellant. It is true, by his order the Commissioner purported to set aside the assessment orders made under S. 23(3) and S. 55 and directed the Income-tax Officer to make fresh assessments according to law for each of the years in question. If this part of the order is literally construed it would clearly be open to the objection raised by the respondent. The assessment orders passed by the Income-tax Officer for the years 1947-48 and 1948-49 had been modified by the Appellate Assistant Commissioner and in that sense they had ceased to be the orders of assessment passed by the Income-tax Officer himself and so the Commissioner could not have exercised his revisional power under S. 33B (1) in respect of the said appellate orders but we are inclined to think that the Commissioner did not intend to set aside the assessments in this sense. It is clear from the order read as a whole that, having cancelled the respondents registration, the Commissioner wanted to direct the Income-tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent. In fact it is conceded that, in his subsequent order, the Income-tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under S. 23(5)(b) on the basis that the respondent is an unregistered firm.Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that "he directed the Income-tax Officer to pass the order in a particular manner".The answer to question No. 2 would accordingly be in the negative. Then as regards question No. 3, it is difficult to understand how this question can be said to arise from the proceedings before the tribunal. This question challenges the validity of the procedure adopted by the Income-tax Officer in passing fresh orders against the respondent. This proceeding is clearly subsequent to the impugned order of the Commissioner under S. 33B (1) and so we are unable to see how the tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioners order under Section 33-B (1).Besides, it has been fairly conceded by Mr. Ayyangar before us that, when the Income-tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondents registration, there was no occasion or need to issue another notice against the respondent.We must accordingly answer question No. 3 also in the negative. | 1[ds]Section 30 (1) gives the assessee the right to prefer appeals against the orders specified in the said Section. The assessee firm can, for instance, object to the amount of income assessed under S. 23 or S. 27. The assessee firm can also object to the order passed by the Income-tax Officer refusing to register it under S. 23 (4) or S. 26-A. It can likewise object to the cancellation by the Income-tax Officer of its registration under Section 23 (4).It is significant that, whereas an appeal is provided against orders passed by the Income-tax Officer under S. 23 (4) or section 26-A either refusing to register the firm or cancelling registration of the firm, no appeal can be filed by the department against the order granting registration. Indeed it is patent that the scheme of the Act in respect of appeals to the Appellate Assistant Commissioner is that it is only the assessee who is given a right to make an appeal and not the department. Thus there can be no doubt that the Income-tax Officers order granting registration to a firm cannot become the subject-matter of an appeal before the Appellatepowers of the Appellate Assistant Commissioner are to be found in S. 31 of the Act. Section 31 (3) (a) authorises the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment under appeal. Under S. 31 (3) (b), wide powers are given to the appellate authority to set aside the assessment or direct the Income-tax Officer to make fresh assessment after making such further enquiry as the Income-tax Officer may think fit or as the Appellate Assistant Commissioner may direct. The Appellate Assistant Commissioner is also given the authority, in the case of an order cancelling the registration of the firm under sub-s. (4) of S. 23 or refusing to register a firm under sub-s. (4) of S. 23 or S. 26-A or to make a fresh assessment under S. 27, to confirm such order or cancel it and direct the Income-tax Officer to register the firm or to make a fresh assessment as the case may be. This Section further lays down that, at the hearing of an appeal against the order of an Income-tax Officer, the Income-tax Officer shall have the right to be heard either in person or by his representative. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under S. 31. It is also clear that, before the appellate authority exercises his powers, he is bound to hear the Income-tax Officer or his representative. It has been urged before us by Mr. Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income-tax Officer or his representative, set aside the order of registration passed by the Income-tax Officer. We are not prepared to accept this argument.The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30 (1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the appellate authority to entertain a plea about the correctness, propriety or validity of such an order.Indeed, if the respondents contention is accepted, it would virtually give the department a right of appeal against the order in question and there can be no doubt that the scheme of the Act is not to give the department a right of appeal to the Appellate Assistant Commissioner against any orders passed by the Income-tax Officer.The order granting registration can be cancelled by the Income-tax Officer himself either under R. 6-B or under S. 23 (4). It may be cancelled by the Commissioner in exercise of his revisional power under S. 33-B; but it cannot be cancelled by the Appellate Assistant Commissioner in exercise of his appellate jurisdiction under Section 31 of the Act. It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income-tax Officer. If that be the true position, the order of registration passed by the Income-tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income-tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income-tax Officer in the present case.The case in regard to the subsequent year 1949-50 presents no difficulty. The appeal preferred by the respondent against the Income-tax Officers assessment order in respect of this year was pending at the material time before the Appellate Assistant. Commissioner; and so no question of merger arose in respect of the order granting renewal of registration for this period. There can be no doubt even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law. It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order under appeal. The High Court, however, appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons. It was also assumed by the High Court that, in the pending appeal, the department would have an alternative remedy because, according to the High Court, the department could have challenged the validity or the propriety of the respondents registration and could have asked the Appellate Assistant Commissioner to cancel it. As we have already pointed out, the department could not challenge the validity of the registration order in the assessees appeal before the appellate authority and so the argument that the department had an alternative remedy is not correct. It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion. Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material.Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of S. 33-B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power.We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the yearThe result is that the view taken by the High Court must be reversed and the first question framed by the tribunal as well as the additional question framed by the High Court must be answered in favour of theis true, by his order the Commissioner purported to set aside the assessment orders made under S. 23(3) and S. 55 and directed the Income-tax Officer to make fresh assessments according to law for each of the years in question. If this part of the order is literally construed it would clearly be open to the objection raised by the respondent. The assessment orders passed by the Income-tax Officer for the years 1947-48 and 1948-49 had been modified by the Appellate Assistant Commissioner and in that sense they had ceased to be the orders of assessment passed by the Income-tax Officer himself and so the Commissioner could not have exercised his revisional power under S. 33B (1) in respect of the said appellate orders but we are inclined to think that the Commissioner did not intend to set aside the assessments in this sense. It is clear from the order read as a whole that, having cancelled the respondents registration, the Commissioner wanted to direct the Income-tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent. In fact it is conceded that, in his subsequent order, the Income-tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under S. 23(5)(b) on the basis that the respondent is an unregistered firm.Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that "he directed the Income-tax Officer to pass the order in a particular manner".The answer to question No. 2 would accordingly be in the negative. Then as regards question No. 3, it is difficult to understand how this question can be said to arise from the proceedings before the tribunal. This question challenges the validity of the procedure adopted by the Income-tax Officer in passing fresh orders against the respondent. This proceeding is clearly subsequent to the impugned order of the Commissioner under S. 33B (1) and so we are unable to see how the tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioners order under Section 33-B (1).Besides, it has been fairly conceded by Mr. Ayyangar before us that, when the Income-tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondents registration, there was no occasion or need to issue another notice against the respondent.We must accordingly answer question No. 3 also in the negative. | 1 | 5,340 | 1,870 | ### Instruction:
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that the Commissioner had no authority to set aside the registration order passed by the Income-tax Officer granting registration to the respondent for the years 1947-48 and 1948-1949.16. The case in regard to the subsequent year 1949-50 presents no difficulty. The appeal preferred by the respondent against the Income-tax Officers assessment order in respect of this year was pending at the material time before the Appellate Assistant. Commissioner; and so no question of merger arose in respect of the order granting renewal of registration for this period. There can be no doubt even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law. It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order under appeal. The High Court, however, appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons. It was also assumed by the High Court that, in the pending appeal, the department would have an alternative remedy because, according to the High Court, the department could have challenged the validity or the propriety of the respondents registration and could have asked the Appellate Assistant Commissioner to cancel it. As we have already pointed out, the department could not challenge the validity of the registration order in the assessees appeal before the appellate authority and so the argument that the department had an alternative remedy is not correct. It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion. Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material.Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of S. 33-B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power.We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the year 1949-50. The result is that the view taken by the High Court must be reversed and the first question framed by the tribunal as well as the additional question framed by the High Court must be answered in favour of the appellant.17. Then there remain two other questions which were framed by the tribunal but have not been considered by the High Court. The learned counsel appearing for both the parties agree that we need not remit these two questions to the High Court with the direction that the High Court should deal with them in accordance with law; it has been conceded before us that, if the principal question about the Commissioners power under S. 33B (1) to cancel the respondents registration is answered in favour of the appellant, then the two remaining questions would become academic and answers to them would also have to be in favour of the appellant. It is true, by his order the Commissioner purported to set aside the assessment orders made under S. 23(3) and S. 55 and directed the Income-tax Officer to make fresh assessments according to law for each of the years in question. If this part of the order is literally construed it would clearly be open to the objection raised by the respondent. The assessment orders passed by the Income-tax Officer for the years 1947-48 and 1948-49 had been modified by the Appellate Assistant Commissioner and in that sense they had ceased to be the orders of assessment passed by the Income-tax Officer himself and so the Commissioner could not have exercised his revisional power under S. 33B (1) in respect of the said appellate orders but we are inclined to think that the Commissioner did not intend to set aside the assessments in this sense. It is clear from the order read as a whole that, having cancelled the respondents registration, the Commissioner wanted to direct the Income-tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent. In fact it is conceded that, in his subsequent order, the Income-tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under S. 23(5)(b) on the basis that the respondent is an unregistered firm.Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that "he directed the Income-tax Officer to pass the order in a particular manner".The answer to question No. 2 would accordingly be in the negative. Then as regards question No. 3, it is difficult to understand how this question can be said to arise from the proceedings before the tribunal. This question challenges the validity of the procedure adopted by the Income-tax Officer in passing fresh orders against the respondent. This proceeding is clearly subsequent to the impugned order of the Commissioner under S. 33B (1) and so we are unable to see how the tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioners order under Section 33-B (1).Besides, it has been fairly conceded by Mr. Ayyangar before us that, when the Income-tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondents registration, there was no occasion or need to issue another notice against the respondent.We must accordingly answer question No. 3 also in the negative.
### Response:
1
### Explanation:
in appeal will not and cannot affect the order of registration made by the Income-tax Officer. If that be the true position, the order of registration passed by the Income-tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income-tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income-tax Officer in the present case.The case in regard to the subsequent year 1949-50 presents no difficulty. The appeal preferred by the respondent against the Income-tax Officers assessment order in respect of this year was pending at the material time before the Appellate Assistant. Commissioner; and so no question of merger arose in respect of the order granting renewal of registration for this period. There can be no doubt even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law. It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order under appeal. The High Court, however, appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons. It was also assumed by the High Court that, in the pending appeal, the department would have an alternative remedy because, according to the High Court, the department could have challenged the validity or the propriety of the respondents registration and could have asked the Appellate Assistant Commissioner to cancel it. As we have already pointed out, the department could not challenge the validity of the registration order in the assessees appeal before the appellate authority and so the argument that the department had an alternative remedy is not correct. It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion. Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material.Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of S. 33-B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power.We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the yearThe result is that the view taken by the High Court must be reversed and the first question framed by the tribunal as well as the additional question framed by the High Court must be answered in favour of theis true, by his order the Commissioner purported to set aside the assessment orders made under S. 23(3) and S. 55 and directed the Income-tax Officer to make fresh assessments according to law for each of the years in question. If this part of the order is literally construed it would clearly be open to the objection raised by the respondent. The assessment orders passed by the Income-tax Officer for the years 1947-48 and 1948-49 had been modified by the Appellate Assistant Commissioner and in that sense they had ceased to be the orders of assessment passed by the Income-tax Officer himself and so the Commissioner could not have exercised his revisional power under S. 33B (1) in respect of the said appellate orders but we are inclined to think that the Commissioner did not intend to set aside the assessments in this sense. It is clear from the order read as a whole that, having cancelled the respondents registration, the Commissioner wanted to direct the Income-tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent. In fact it is conceded that, in his subsequent order, the Income-tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under S. 23(5)(b) on the basis that the respondent is an unregistered firm.Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that "he directed the Income-tax Officer to pass the order in a particular manner".The answer to question No. 2 would accordingly be in the negative. Then as regards question No. 3, it is difficult to understand how this question can be said to arise from the proceedings before the tribunal. This question challenges the validity of the procedure adopted by the Income-tax Officer in passing fresh orders against the respondent. This proceeding is clearly subsequent to the impugned order of the Commissioner under S. 33B (1) and so we are unable to see how the tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioners order under Section 33-B (1).Besides, it has been fairly conceded by Mr. Ayyangar before us that, when the Income-tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondents registration, there was no occasion or need to issue another notice against the respondent.We must accordingly answer question No. 3 also in the negative.
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The Oriental Insurance Co. Ltd. and Others Vs. Hansrajbhai V. Kodala and Ors. | When the Legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the Legislature unless context otherwise requires. However, in relation to the same subject matter, if different words of different import are used in the same stature, there is presumption that they are not used in the same sense Re: Board of Revenue v. Arthur Paul, AIR 1956 SC 35 at 38 . In this light, particularly Section 141 which provides for right to claim compensation ‘ under any other provision of this Act? or of ‘ any other law for the time being in force?, proviso to sub-section (5) of Section 140 would mean that it does not provide for deduction or adjustment of compensation payable under the Act, that is, on the principle of fault liability which is to be determined under Section 168. Specific Language of Section 163A Including its heading. 19. Lastly, for interpretation and construction of Section 163A, we would refer to its heading and language. The heading is ? Special provisions as to payment of compensation on structured formula basis?. At the outset, we would make it clear that for interpretation of the words of Section the language of the heading cannot be used to control the operation of the Section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section Re: K.P. Varghese v. ITO, 1982 SCR 629 at 647. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has convisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins witfi non-obstante clause ? notwithstanding anything contained in this Act or any law for the time being in force.? This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163-B further clarifies that claim petition can be filed either under Section 140 or under Section 163 A but not under both sections. 20. The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140 (1), it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicle. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase as ? owner of the motor vehicle of authorised insurer? as ? owner of the motor vehicle or authorised insurer? on the assumption that ? of ? is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs. 50000 is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading ‘of as ‘or ‘ would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Sec tion 163 A with the other payment on fault liability under the Act. 21. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons:- (l)There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so [ Sections 140 and 141] (2) In case where compensation is paid on no fault liability under section 140 and 161 in case of ‘hit and run motor accidents?, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163 A. (3) The words? under any other law for the time being in force would certainly have different meaning from the words? under this Act? or? under any other provision of this Act.? (4) In view of the non- obstante clause ‘ notwithstanding anything contained in this Act? the provisions of Section 163 A would exclude determination of compensation on the principle of fault liability. (5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163 A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle concerned. (6) Award of compensation under section 163 A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation. | 1[ds]21. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons:-(l)There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so [ Sections 140 and 141](2) In case where compensation is paid on no fault liability under section 140 and 161 in case of ‘hit and run motor accidents?, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163 A(3) The words? under any other law for the time being in force would certainly have different meaning from the words? under this Act? or? under any other provision of this Act.?(4) In view of the non- obstante clause ‘ notwithstanding anything contained in this Act? the provisions of Section 163 A would exclude determination of compensation on the principle of fault liability(5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163 A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle concerned(6) Award of compensation under section 163 A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation. | 1 | 8,777 | 362 | ### 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:
When the Legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the Legislature unless context otherwise requires. However, in relation to the same subject matter, if different words of different import are used in the same stature, there is presumption that they are not used in the same sense Re: Board of Revenue v. Arthur Paul, AIR 1956 SC 35 at 38 . In this light, particularly Section 141 which provides for right to claim compensation ‘ under any other provision of this Act? or of ‘ any other law for the time being in force?, proviso to sub-section (5) of Section 140 would mean that it does not provide for deduction or adjustment of compensation payable under the Act, that is, on the principle of fault liability which is to be determined under Section 168. Specific Language of Section 163A Including its heading. 19. Lastly, for interpretation and construction of Section 163A, we would refer to its heading and language. The heading is ? Special provisions as to payment of compensation on structured formula basis?. At the outset, we would make it clear that for interpretation of the words of Section the language of the heading cannot be used to control the operation of the Section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section Re: K.P. Varghese v. ITO, 1982 SCR 629 at 647. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has convisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins witfi non-obstante clause ? notwithstanding anything contained in this Act or any law for the time being in force.? This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163-B further clarifies that claim petition can be filed either under Section 140 or under Section 163 A but not under both sections. 20. The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140 (1), it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicle. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase as ? owner of the motor vehicle of authorised insurer? as ? owner of the motor vehicle or authorised insurer? on the assumption that ? of ? is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs. 50000 is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading ‘of as ‘or ‘ would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Sec tion 163 A with the other payment on fault liability under the Act. 21. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons:- (l)There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so [ Sections 140 and 141] (2) In case where compensation is paid on no fault liability under section 140 and 161 in case of ‘hit and run motor accidents?, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163 A. (3) The words? under any other law for the time being in force would certainly have different meaning from the words? under this Act? or? under any other provision of this Act.? (4) In view of the non- obstante clause ‘ notwithstanding anything contained in this Act? the provisions of Section 163 A would exclude determination of compensation on the principle of fault liability. (5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163 A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle concerned. (6) Award of compensation under section 163 A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation.
### Response:
1
### Explanation:
21. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons:-(l)There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so [ Sections 140 and 141](2) In case where compensation is paid on no fault liability under section 140 and 161 in case of ‘hit and run motor accidents?, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163 A(3) The words? under any other law for the time being in force would certainly have different meaning from the words? under this Act? or? under any other provision of this Act.?(4) In view of the non- obstante clause ‘ notwithstanding anything contained in this Act? the provisions of Section 163 A would exclude determination of compensation on the principle of fault liability(5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163 A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle concerned(6) Award of compensation under section 163 A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation.
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Commissioner of Income Tax Vs. Shri Rama Multi Tech Ltd | Civil Appeal Nos. 4072-4073 of 20071. The only question on which the leave has been granted by this Courts order dated August 31, 2007 is as follows:"When the Assessee had itself capitalized the interest and other expenditure incurred towards creation assets. Whether the Commissioner of Income-tax (Appeals) and the Tribunal were right and justified in allowing the Assessee to claim the said expenditure as revenue expenditure without any just cause?" Briefly stated, the facts of the present appeals are as follows:The Respondent is a public limited company. For the assessment year 2000-01 it had incurred an expenditure of Rs. 3,37,84,348 towards payment of interest on loans taken and other items for setting up the industry. Even though it had capitalised the said amount and claimed depreciation before the assessing authority, however, in appeal, the Respondent raised additional ground claiming deduction of the aforesaid amount on interest paid with some other expenditure on other items connected therewith as revenue expenditure. 2. The Commissioner of Income-tax (Appeals) vide order dated March 5, 2004 allowed the claim of the Respondent-Assessee only to the extent of interest amount of Rs. 2,92,45,670 paid on loans taken by it for establishing the industry. He, however, disallowed the other expenditures, namely, financial charges, professional expenses, upfront fee, etc.3. The Revenue, feeling aggrieved by the said allowance, preferred an appeal before the Income-tax Appellate Tribunal which vide order dated December 2, 2004 upheld the order of the Commissioner of Income-tax (Appeals) in so far as it related to the allowance of the expenditure claimed towards payment of interest and also allowed expenditure on other items connected therewith. The High Court did not interfere in the appeal preferred by the Revenue on the ground that the Tribunal has followed the decision of the Gujarat High Court in the case of Deputy CIT v. Core Healthcare Ltd. [2001] 251 ITR 61 (Guj).4. Feeling aggrieved, the Commissioner of Income-tax has preferred the present appeal.5. We have heard learned Counsel for the parties.6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court.7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals).8. Learned Counsel for the Revenue-Appellant submitted that the Respondent cannot claim depreciation on the amount of interest which has been allowed as revenue expenditure and therefore, the depreciation referable to such interest expenditure be reversed.9. Learned Counsel for the Respondent however submitted that there is nothing on record that depreciation on this amount has been taken by the Respondent. | 1[ds]6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals). | 1 | 550 | 111 | ### 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:
Civil Appeal Nos. 4072-4073 of 20071. The only question on which the leave has been granted by this Courts order dated August 31, 2007 is as follows:"When the Assessee had itself capitalized the interest and other expenditure incurred towards creation assets. Whether the Commissioner of Income-tax (Appeals) and the Tribunal were right and justified in allowing the Assessee to claim the said expenditure as revenue expenditure without any just cause?" Briefly stated, the facts of the present appeals are as follows:The Respondent is a public limited company. For the assessment year 2000-01 it had incurred an expenditure of Rs. 3,37,84,348 towards payment of interest on loans taken and other items for setting up the industry. Even though it had capitalised the said amount and claimed depreciation before the assessing authority, however, in appeal, the Respondent raised additional ground claiming deduction of the aforesaid amount on interest paid with some other expenditure on other items connected therewith as revenue expenditure. 2. The Commissioner of Income-tax (Appeals) vide order dated March 5, 2004 allowed the claim of the Respondent-Assessee only to the extent of interest amount of Rs. 2,92,45,670 paid on loans taken by it for establishing the industry. He, however, disallowed the other expenditures, namely, financial charges, professional expenses, upfront fee, etc.3. The Revenue, feeling aggrieved by the said allowance, preferred an appeal before the Income-tax Appellate Tribunal which vide order dated December 2, 2004 upheld the order of the Commissioner of Income-tax (Appeals) in so far as it related to the allowance of the expenditure claimed towards payment of interest and also allowed expenditure on other items connected therewith. The High Court did not interfere in the appeal preferred by the Revenue on the ground that the Tribunal has followed the decision of the Gujarat High Court in the case of Deputy CIT v. Core Healthcare Ltd. [2001] 251 ITR 61 (Guj).4. Feeling aggrieved, the Commissioner of Income-tax has preferred the present appeal.5. We have heard learned Counsel for the parties.6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court.7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals).8. Learned Counsel for the Revenue-Appellant submitted that the Respondent cannot claim depreciation on the amount of interest which has been allowed as revenue expenditure and therefore, the depreciation referable to such interest expenditure be reversed.9. Learned Counsel for the Respondent however submitted that there is nothing on record that depreciation on this amount has been taken by the Respondent.
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### Explanation:
6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals).
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Income Tax Officer, New Delhi Vs. Delhi Development Authority | far the period prior to 1.4.1989 is concerned, the appellant?s case is that interest has been rightly calculated under Section 244(1) of the Act. It is submitted that Sub-section (1A) of Section 244 will not be applicable since the payment of tax was not made in pursuance of any order or assessment. This contention in our view has no force. It would not be necessary that in all cases, before payment is made, there must always be an actual order of assessment. Tax is payable in advance as well. It is deducted at source also, as in the present case. On perusal of Section 244 what seems to be important is that the amount becomes refundable to the assessee by virtue of an order passed in appeal or any proceedings under the Act. Section 240 of the Income Tax Act deals with refund as a result of any order passed in appeal or proceedings under the Act. It reads as under: ?240. Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf: Provided that where, by the order aforesaid, ? (a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee.? It will also be beneficial to peruse Section 244 of the Income Tax Act. It is as follows: ?244. (1) Where a refund is due to the assessee in pursuance of an order referred to in Section 240 and the (Assessing) Officer does not grant the refund within a period of (three months from the end of the month in which such order is passed), the Central Government shall pay to the assessee simple interest at (fifteen) per cent per annum on the amount of refund due from the date immediately following the expiry of the period of (three) months aforesaid to the date on which the refund is granted. (1A) Where the whole or any part of the refund referred to in Sub-section (1) is due to the assessee, as a result of any amount having been paid by him after the 31st day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceedings under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in Sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted: Provided that?--------? 6. In the case in hand, as indicated earlier, the direction to refund the amount has been made in appellate proceedings before the Tribunal. The amount is to be refunded to the assessee. It cannot be said that the ?refundee? will not be an assessee only for the reason that actually no assessment proceeding had taken place. It would be pertinent to refer to the provision contained under Section 201 of the Income Tax Act which clearly provides that if the principal officer of the company liable to deduct the income-tax at source fails to do so, he shall be deemed to be assessee in default in respect of the tax. The definition of the word ?assessee? as contained under Sub-section (7) of Section 2 of the Act reads as under :?Section 2(7) `Assessee? means a person by whom (any tax) or any other sum of money is payable under this Act, and includes? (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person;(b) every person who is deemed to be an assessee under any provision of this Act.(c) every person who is deemed to be an assessee in default under any provision of this Act.?7. From the above provision, it is clear that term ?assessee? includes actual assessees as well as deemed assessees under the provision of the Act. It is therefore not correct to contend that unless there are actual assessment proceedings pertaining to any person, he cannot be considered to be an assessee. In the present case D.D.A. was considered to be liable to deduct the tax at source. It failed to do so. Hence, order under Section 201(1) and 201(1A) was passed raising the demand and amount of tax was paid. The order of refund was passed in appellate proceedings under the Act attracting Section 240 of the Act. Certain decisions were cited at the Bar to show the meaning of the words ?assessee? and ?assessment? and different stages of the assessment proceedings need not be dealt with in view of clear definition of the word ?assessee? under the Act as quoted above.8. The High Court has rightly provided in para 12 of its judgment quoted earlier for applying Sub-section (1A) of Section 244 of the Act for determining interest for period covered by the assessment year 1988-89. It is so also for the reason that the amount was paid by way of deductions after 31.3.1975, as provided under Sub-section (1A) of Section 244 of the Act. | 0[ds]6. In the case in hand, as indicated earlier, the direction to refund the amount has been made in appellate proceedings before the Tribunal. The amount is to be refunded to the assessee. It cannot be said that thewill not be an assessee only for the reason that actually no assessment proceeding had taken place. It would be pertinent to refer to the provision contained under Section 201 of the Income Tax Act which clearly provides that if the principal officer of the company liable to deduct the income-tax at source fails to do so, he shall be deemed to be assessee in default in respect of the tax. The definition of the wordas contained under Sub-section (7) of Section 2 of the Act reads as under :?Section 2(7) `Assessee? means a person by whom (any tax) or any other sum of money is payable under this Act, andevery person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person;(b) every person who is deemed to be an assessee under any provision of this Act.(c) every person who is deemed to be an assessee in default under any provision of this Act.?7. From the above provision, it is clear that termincludes actual assessees as well as deemed assessees under the provision of the Act. It is therefore not correct to contend that unless there are actual assessment proceedings pertaining to any person, he cannot be considered to be an assessee. In the present case D.D.A. was considered to be liable to deduct the tax at source. It failed to do so. Hence, order under Section 201(1) and 201(1A) was passed raising the demand and amount of tax was paid. The order of refund was passed in appellate proceedings under the Act attracting Section 240 of the Act. Certain decisions were cited at the Bar to show the meaning of the wordst? and different stages of the assessment proceedings need not be dealt with in view of clear definition of the wordunder the Act as quoted above.8. The High Court has rightly provided in para 12 of its judgment quoted earlier for applying Sub-section (1A) of Section 244 of the Act for determining interest for period covered by the assessment year 1988-89. It is so also for the reason that the amount was paid by way of deductions after 31.3.1975, as provided under Sub-section (1A) of Section 244 of the Act. | 0 | 1,950 | 513 | ### Instruction:
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far the period prior to 1.4.1989 is concerned, the appellant?s case is that interest has been rightly calculated under Section 244(1) of the Act. It is submitted that Sub-section (1A) of Section 244 will not be applicable since the payment of tax was not made in pursuance of any order or assessment. This contention in our view has no force. It would not be necessary that in all cases, before payment is made, there must always be an actual order of assessment. Tax is payable in advance as well. It is deducted at source also, as in the present case. On perusal of Section 244 what seems to be important is that the amount becomes refundable to the assessee by virtue of an order passed in appeal or any proceedings under the Act. Section 240 of the Income Tax Act deals with refund as a result of any order passed in appeal or proceedings under the Act. It reads as under: ?240. Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf: Provided that where, by the order aforesaid, ? (a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee.? It will also be beneficial to peruse Section 244 of the Income Tax Act. It is as follows: ?244. (1) Where a refund is due to the assessee in pursuance of an order referred to in Section 240 and the (Assessing) Officer does not grant the refund within a period of (three months from the end of the month in which such order is passed), the Central Government shall pay to the assessee simple interest at (fifteen) per cent per annum on the amount of refund due from the date immediately following the expiry of the period of (three) months aforesaid to the date on which the refund is granted. (1A) Where the whole or any part of the refund referred to in Sub-section (1) is due to the assessee, as a result of any amount having been paid by him after the 31st day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceedings under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in Sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted: Provided that?--------? 6. In the case in hand, as indicated earlier, the direction to refund the amount has been made in appellate proceedings before the Tribunal. The amount is to be refunded to the assessee. It cannot be said that the ?refundee? will not be an assessee only for the reason that actually no assessment proceeding had taken place. It would be pertinent to refer to the provision contained under Section 201 of the Income Tax Act which clearly provides that if the principal officer of the company liable to deduct the income-tax at source fails to do so, he shall be deemed to be assessee in default in respect of the tax. The definition of the word ?assessee? as contained under Sub-section (7) of Section 2 of the Act reads as under :?Section 2(7) `Assessee? means a person by whom (any tax) or any other sum of money is payable under this Act, and includes? (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person;(b) every person who is deemed to be an assessee under any provision of this Act.(c) every person who is deemed to be an assessee in default under any provision of this Act.?7. From the above provision, it is clear that term ?assessee? includes actual assessees as well as deemed assessees under the provision of the Act. It is therefore not correct to contend that unless there are actual assessment proceedings pertaining to any person, he cannot be considered to be an assessee. In the present case D.D.A. was considered to be liable to deduct the tax at source. It failed to do so. Hence, order under Section 201(1) and 201(1A) was passed raising the demand and amount of tax was paid. The order of refund was passed in appellate proceedings under the Act attracting Section 240 of the Act. Certain decisions were cited at the Bar to show the meaning of the words ?assessee? and ?assessment? and different stages of the assessment proceedings need not be dealt with in view of clear definition of the word ?assessee? under the Act as quoted above.8. The High Court has rightly provided in para 12 of its judgment quoted earlier for applying Sub-section (1A) of Section 244 of the Act for determining interest for period covered by the assessment year 1988-89. It is so also for the reason that the amount was paid by way of deductions after 31.3.1975, as provided under Sub-section (1A) of Section 244 of the Act.
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6. In the case in hand, as indicated earlier, the direction to refund the amount has been made in appellate proceedings before the Tribunal. The amount is to be refunded to the assessee. It cannot be said that thewill not be an assessee only for the reason that actually no assessment proceeding had taken place. It would be pertinent to refer to the provision contained under Section 201 of the Income Tax Act which clearly provides that if the principal officer of the company liable to deduct the income-tax at source fails to do so, he shall be deemed to be assessee in default in respect of the tax. The definition of the wordas contained under Sub-section (7) of Section 2 of the Act reads as under :?Section 2(7) `Assessee? means a person by whom (any tax) or any other sum of money is payable under this Act, andevery person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person;(b) every person who is deemed to be an assessee under any provision of this Act.(c) every person who is deemed to be an assessee in default under any provision of this Act.?7. From the above provision, it is clear that termincludes actual assessees as well as deemed assessees under the provision of the Act. It is therefore not correct to contend that unless there are actual assessment proceedings pertaining to any person, he cannot be considered to be an assessee. In the present case D.D.A. was considered to be liable to deduct the tax at source. It failed to do so. Hence, order under Section 201(1) and 201(1A) was passed raising the demand and amount of tax was paid. The order of refund was passed in appellate proceedings under the Act attracting Section 240 of the Act. Certain decisions were cited at the Bar to show the meaning of the wordst? and different stages of the assessment proceedings need not be dealt with in view of clear definition of the wordunder the Act as quoted above.8. The High Court has rightly provided in para 12 of its judgment quoted earlier for applying Sub-section (1A) of Section 244 of the Act for determining interest for period covered by the assessment year 1988-89. It is so also for the reason that the amount was paid by way of deductions after 31.3.1975, as provided under Sub-section (1A) of Section 244 of the Act.
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State Of West Bengal Vs. Administrator, Howrah Municipality & Ors | to the Ex. Government Pleader as well as the copy of the latters reply dated January 29, 1966 were also filed in the High Court. In the letter dated December 18, 1965, the Collector, after a reference to the relevant provisions of the Legal Remembrancers Manual informed the Ex. Government Pleader that the latter had not complied with those provisions inasmuch as he had not obtained the certified copies of the judgment and decree and forwarded them to the Collector with his opinion in the case specially when the decision was adverse to the Government.39. In the counter-affidavit filed on behalf of the respondents, there is no specific denial of the fact that the Government came to know only on March 4, 1965 that no appeals had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. On the other hand, the main stand taken by them is that inasmuch as the State filed objections under S. 47, C. P. C. on August 27, 1964, regarding executability of the Award, in view of the decree in Title Suit No. 34 of 1961, the Government had become fully aware that it was imperative that appeals should be filed against the decision in the Land Acquisition Reference Cases. It was also emphasised that the same Law Officer, who appeared in the Land Acquisition Reference Cases and represented the Government, had appeared on behalf of the State in the Title Suit No. 34 of 1961. It is also averred that the opinion of the Government Pleader regarding the necessity of filing appeals against the decision of the Addl. District Judge in the Land Acquisition Reference Cases had been furnished to the Government even in 1963. In view of all these circumstances, it is pointed out on behalf of the respondents that the Government is guilty of negligence and inaction in not having filed the appeals immediately after August 27, 1964.40. We have already referred to the fact that the High Court itself did not attach any importance to the period anterior to August 27, 1964. It has dismissed the applications of the State on the ground that there is unexplained delay between the period August 27, 1964 and July 3, 1965.41. We have already referred to the fact that the High Court does not disbelieve the statement in the affidavit filed on behalf of the State that it was only on March 4, 1965 that it was known that no appeal had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We have already pointed out that even this fact is not denied in the counter-affidavits filed on behalf of the respondents. If that is so, it follows, that the High Court was not justified in holding, at any rate, that there was an unexplained delay from August 27, 1964 upto March 4, 1965. The date, August 27, 1964, is a date prior to the date of the knowledge of the Legal Remembrancer, namely, March 4, 1965, that no appeal has been filed against the Award.42. Then the question arises whether the appellant has taken diligent steps after March 4, 1965. It has been stated in the affidavit filed on behalf of the State that immediately after March 4, 1965, the matter was investigated and the question of the remedy to be pursued for challenging the judgment in the Land Acquisition Reference Cases was immediately taken on hand. According to the State, papers were entrusted to the Lawyer in the High Court for giving advice regarding the procedure and that the State Lawyer in the High Court on April 15, 1965, advised the appellant to file an application in the High Court under Art. 227. The averment that the State was so advised on April 15, 1965, by the State Lawyer has neither been disputed nor denied by the respondents. The High Court also has not disbelieved this plea of the State. That writ petitions were filed under Art. 227 on May 17, 1965, is clear from the proceedings, referred to earlier. In fact we have also stated that the High Court granted in the said proceedings stay of execution of the decree under the Award and the writ petitions were pending till September 28, 1966.No doubt, it may be a wrong advice on the part of the State Counsel but the fact that the State acted upon that advice cannot be considered to be a circumstances showing negligence on the part of the State. At the utmost what could be said is that they were misguided by a wrong advice given by its counsel.43. Even as late as June 17, 1965, the High Court in the writ petitions extended the stay and granted further time to the appellant to file regular appeals together with applications under S. 5 of the Limitation Act. Again, even only July 1, 1965, the High Court in the writ petitions further extended the stay and directed the appellant to get appropriate orders from the Bench dealing with the regular appeals. On July 3, 1965, the appeals were filed along with the applications for excusing the delay.44. In view of the circumstances mentioned above, which, unfortunately, have not been adverted to and touched upon by the High Court, we are of the opinion that after March 4, 1965 that appellant had been taking diligent and active steps to challenge the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We are satisfied that in the circumstances of this case, the appellant has shown sufficient cause and it is not possible to impute to the appellant want to bona fides or such inaction or negligence as would deprive them of the protection of S. 5 of the Limitation Act. We are, therefore, inclined to allow the three applications filed by the appellant in the High Court under S. 5 of the Limitation Act and to condone the delay in filing the three appeals. | 1[ds]26. The legal position when a question arises under S. 5 of the Limitation Act is fairly well settled. It is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under S. 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the partys negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstances or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to sufficient cause or not. It is needless to emphasis that courts have to use their judicial discretion in the matter soundly in the interest of justice.In the case before us, it must be stated in fairness to the learned Solicitor General that he has not contended that the state must be treated differently. On the other hand, his contention is that the reasons given by the appellant, which, according to him will establish "sufficient cause" have not at all been adverted to, much less, considered by the High Court. In our opinion the contention of the learned Solicitor General is perfectly justified in the circumstances of this case. The High Court, certainly, was not bound to accept readily whatever has been stated on behalf of the State to explain the delay. But, it was the duty of the High Court to have scrutinised the reasons given by the State and considered the same on merits and expressed an opinion, one way or the other. That, unfortunately, is lacking in this case.Then the question arises whetherthe appellant has taken diligent steps after March 4,1965. It has been stated in the affidavit filed on behalf of the State that immediately after March 4, 1965, the matter was investigated and the question of the remedy to be pursued for challenging the judgment in the Land Acquisition Reference Cases was immediately taken on hand. According to the State, papers were entrusted to the Lawyer in the High Court for giving advice regarding the procedure and that the State Lawyer in the High Court on April 15, 1965, advised the appellant to file an application in the High Court under Art. 227. The averment that the State was so advised on April 15, 1965, by the State Lawyer has neither been disputed nor denied by the respondents. The High Court also has not disbelieved this plea of the State. That writ petitions were filed under Art. 227 on May 17, 1965, is clear from the proceedings, referred to earlier. In fact we have also stated that the High Court granted in the said proceedings stay of execution of the decree under the Award and the writ petitions were pending till September 28, 1966.No doubt, it may be a wrong advice on the part of the State Counsel but the fact that the State acted upon that advice cannot be considered to be a circumstances showing negligence on the part of the State. At the utmost what could be said is that they were misguided by a wrong advice given by its counsel.43. Even as late as June 17, 1965, the High Court in the writ petitions extended the stay and granted further time to the appellant to file regular appeals together with applications under S. 5 of the Limitation Act. Again, even only July 1, 1965, the High Court in the writ petitions further extended the stay and directed the appellant to get appropriate orders from the Bench dealing with the regular appeals. On July 3, 1965, the appeals were filed along with the applications for excusing the delay.44. In view of the circumstances mentioned above, which, unfortunately, have not been adverted to and touched upon by the High Court, we are of the opinion that after March 4, 1965 that appellant had been taking diligent and active steps to challenge the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We are satisfied that in the circumstances of this case, the appellant has shown sufficient cause and it is not possible to impute to the appellant want to bona fides or such inaction or negligence as would deprive them of the protection of S. 5 of the Limitation Act. We are, therefore, inclined to allow the three applications filed by the appellant in the High Court under S. 5 of the Limitation Act and to condone the delay in filing the three appeals.We have only referred above to the various matters placed before us. We express no opinion whatsoever regarding those aspects. As and when occasion arises, it is open to the parties concerned to raise any contention that may be available to them in law or on facts.23. We have already referred to the fact that on the first occasion when the High Court dealt with the applications under S. 5 of the Limitation Act it had passed an order on January 21, 1966, which we have extracted in the earlier part of this judgment. That itself was a brief order. But that order clearly indicates that the learned Judges were not inclined to close the proceedings once and for all. In fact, they have given a further opportunity to the State to move forof the order or modification of the order on better materials.24. The order dated August 18, 1966, unfortunately, is very brief and does not give the reasons as to why the High Court has come to the conclusion that the delay between August 27, 1964 and July 3, 1965 has not been explained by the appellant. There is only a brief statement to the effect that on the first of the above dates, i.e. August 27, 1964, the appellant filed objections under S. 47, C. P. C. to the execution of the decree under Award. Though the respondents urged that the delay is really from September 21, 1963, we are not inclined to accept that contention, especially when the High Court itself has not given any importance to the period prior to August 27, 1964. In view of the nature of the order passed by the High Court without an investigation into the facts and without giving reasons, we would have normally remanded the proceedings to the High Court for a fresh consideration. But we are not adopting that procedure in view of the fact that considerable time has already elapsed and if the matter is remanded, it will give rise again to a further challenge by way of appeal to the High Court may be. Hence, we proceed to consider the matter and adjudicate upon the question whetherAct.25. One feature that strikes us on a perusal of the judgment of the High Court is that there as absolutely no indication that it has disbelieved any of the averments made in the affidavits filed on behalf of the appellant. If the High Court had considered the reasons given by the appellant, are rejected them as false or if the High Court had held that there has been such total inaction or negligence on the part of the appellant as would deprive the State of the protection under S. 5 of the Limitation Act, the position would be different. We do not have the benefit of the views of the High Court, one way or the other, on these aspects. At any rate, it has not held that the appellant is guilty of negligence or that the applications lack in bona fides.From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.Bearing in mind the principles, referred to by us earlier, we proceed to consider the facts in the case on hand. We do not think it necessary to refer very elaborately to the affidavits filed on both sides because they contain a lot of material relating to the various litigations, referred to above, as well as the legal consequences flowing from them. As stated earlier, we do not propose to go into those matters in theseadvice given by the lawyer to file application under Article 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause.We have already referred to the fact that the High Court does not disbelieve the statement in the affidavit filed on behalf of the State that it was only on March 4, 1965 that it was known that no appeal had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We have already pointed out that even this fact is not denied in thefiled on behalf of the respondents. If that is so, it follows, that the High Court was not justified in holding, at any rate, that there was an unexplained delay from August 27, 1964 upto March 4, 1965. The date, August 27, 1964, is a date prior to the date of the knowledge of the Legal Remembrancer, namely, March 4, 1965, that no appeal has been filed against the Award. | 1 | 7,471 | 1,742 | ### Instruction:
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to the Ex. Government Pleader as well as the copy of the latters reply dated January 29, 1966 were also filed in the High Court. In the letter dated December 18, 1965, the Collector, after a reference to the relevant provisions of the Legal Remembrancers Manual informed the Ex. Government Pleader that the latter had not complied with those provisions inasmuch as he had not obtained the certified copies of the judgment and decree and forwarded them to the Collector with his opinion in the case specially when the decision was adverse to the Government.39. In the counter-affidavit filed on behalf of the respondents, there is no specific denial of the fact that the Government came to know only on March 4, 1965 that no appeals had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. On the other hand, the main stand taken by them is that inasmuch as the State filed objections under S. 47, C. P. C. on August 27, 1964, regarding executability of the Award, in view of the decree in Title Suit No. 34 of 1961, the Government had become fully aware that it was imperative that appeals should be filed against the decision in the Land Acquisition Reference Cases. It was also emphasised that the same Law Officer, who appeared in the Land Acquisition Reference Cases and represented the Government, had appeared on behalf of the State in the Title Suit No. 34 of 1961. It is also averred that the opinion of the Government Pleader regarding the necessity of filing appeals against the decision of the Addl. District Judge in the Land Acquisition Reference Cases had been furnished to the Government even in 1963. In view of all these circumstances, it is pointed out on behalf of the respondents that the Government is guilty of negligence and inaction in not having filed the appeals immediately after August 27, 1964.40. We have already referred to the fact that the High Court itself did not attach any importance to the period anterior to August 27, 1964. It has dismissed the applications of the State on the ground that there is unexplained delay between the period August 27, 1964 and July 3, 1965.41. We have already referred to the fact that the High Court does not disbelieve the statement in the affidavit filed on behalf of the State that it was only on March 4, 1965 that it was known that no appeal had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We have already pointed out that even this fact is not denied in the counter-affidavits filed on behalf of the respondents. If that is so, it follows, that the High Court was not justified in holding, at any rate, that there was an unexplained delay from August 27, 1964 upto March 4, 1965. The date, August 27, 1964, is a date prior to the date of the knowledge of the Legal Remembrancer, namely, March 4, 1965, that no appeal has been filed against the Award.42. Then the question arises whether the appellant has taken diligent steps after March 4, 1965. It has been stated in the affidavit filed on behalf of the State that immediately after March 4, 1965, the matter was investigated and the question of the remedy to be pursued for challenging the judgment in the Land Acquisition Reference Cases was immediately taken on hand. According to the State, papers were entrusted to the Lawyer in the High Court for giving advice regarding the procedure and that the State Lawyer in the High Court on April 15, 1965, advised the appellant to file an application in the High Court under Art. 227. The averment that the State was so advised on April 15, 1965, by the State Lawyer has neither been disputed nor denied by the respondents. The High Court also has not disbelieved this plea of the State. That writ petitions were filed under Art. 227 on May 17, 1965, is clear from the proceedings, referred to earlier. In fact we have also stated that the High Court granted in the said proceedings stay of execution of the decree under the Award and the writ petitions were pending till September 28, 1966.No doubt, it may be a wrong advice on the part of the State Counsel but the fact that the State acted upon that advice cannot be considered to be a circumstances showing negligence on the part of the State. At the utmost what could be said is that they were misguided by a wrong advice given by its counsel.43. Even as late as June 17, 1965, the High Court in the writ petitions extended the stay and granted further time to the appellant to file regular appeals together with applications under S. 5 of the Limitation Act. Again, even only July 1, 1965, the High Court in the writ petitions further extended the stay and directed the appellant to get appropriate orders from the Bench dealing with the regular appeals. On July 3, 1965, the appeals were filed along with the applications for excusing the delay.44. In view of the circumstances mentioned above, which, unfortunately, have not been adverted to and touched upon by the High Court, we are of the opinion that after March 4, 1965 that appellant had been taking diligent and active steps to challenge the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We are satisfied that in the circumstances of this case, the appellant has shown sufficient cause and it is not possible to impute to the appellant want to bona fides or such inaction or negligence as would deprive them of the protection of S. 5 of the Limitation Act. We are, therefore, inclined to allow the three applications filed by the appellant in the High Court under S. 5 of the Limitation Act and to condone the delay in filing the three appeals.
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in the writ petitions extended the stay and granted further time to the appellant to file regular appeals together with applications under S. 5 of the Limitation Act. Again, even only July 1, 1965, the High Court in the writ petitions further extended the stay and directed the appellant to get appropriate orders from the Bench dealing with the regular appeals. On July 3, 1965, the appeals were filed along with the applications for excusing the delay.44. In view of the circumstances mentioned above, which, unfortunately, have not been adverted to and touched upon by the High Court, we are of the opinion that after March 4, 1965 that appellant had been taking diligent and active steps to challenge the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We are satisfied that in the circumstances of this case, the appellant has shown sufficient cause and it is not possible to impute to the appellant want to bona fides or such inaction or negligence as would deprive them of the protection of S. 5 of the Limitation Act. We are, therefore, inclined to allow the three applications filed by the appellant in the High Court under S. 5 of the Limitation Act and to condone the delay in filing the three appeals.We have only referred above to the various matters placed before us. We express no opinion whatsoever regarding those aspects. As and when occasion arises, it is open to the parties concerned to raise any contention that may be available to them in law or on facts.23. We have already referred to the fact that on the first occasion when the High Court dealt with the applications under S. 5 of the Limitation Act it had passed an order on January 21, 1966, which we have extracted in the earlier part of this judgment. That itself was a brief order. But that order clearly indicates that the learned Judges were not inclined to close the proceedings once and for all. In fact, they have given a further opportunity to the State to move forof the order or modification of the order on better materials.24. The order dated August 18, 1966, unfortunately, is very brief and does not give the reasons as to why the High Court has come to the conclusion that the delay between August 27, 1964 and July 3, 1965 has not been explained by the appellant. There is only a brief statement to the effect that on the first of the above dates, i.e. August 27, 1964, the appellant filed objections under S. 47, C. P. C. to the execution of the decree under Award. Though the respondents urged that the delay is really from September 21, 1963, we are not inclined to accept that contention, especially when the High Court itself has not given any importance to the period prior to August 27, 1964. In view of the nature of the order passed by the High Court without an investigation into the facts and without giving reasons, we would have normally remanded the proceedings to the High Court for a fresh consideration. But we are not adopting that procedure in view of the fact that considerable time has already elapsed and if the matter is remanded, it will give rise again to a further challenge by way of appeal to the High Court may be. Hence, we proceed to consider the matter and adjudicate upon the question whetherAct.25. One feature that strikes us on a perusal of the judgment of the High Court is that there as absolutely no indication that it has disbelieved any of the averments made in the affidavits filed on behalf of the appellant. If the High Court had considered the reasons given by the appellant, are rejected them as false or if the High Court had held that there has been such total inaction or negligence on the part of the appellant as would deprive the State of the protection under S. 5 of the Limitation Act, the position would be different. We do not have the benefit of the views of the High Court, one way or the other, on these aspects. At any rate, it has not held that the appellant is guilty of negligence or that the applications lack in bona fides.From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.Bearing in mind the principles, referred to by us earlier, we proceed to consider the facts in the case on hand. We do not think it necessary to refer very elaborately to the affidavits filed on both sides because they contain a lot of material relating to the various litigations, referred to above, as well as the legal consequences flowing from them. As stated earlier, we do not propose to go into those matters in theseadvice given by the lawyer to file application under Article 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause.We have already referred to the fact that the High Court does not disbelieve the statement in the affidavit filed on behalf of the State that it was only on March 4, 1965 that it was known that no appeal had been filed against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. We have already pointed out that even this fact is not denied in thefiled on behalf of the respondents. If that is so, it follows, that the High Court was not justified in holding, at any rate, that there was an unexplained delay from August 27, 1964 upto March 4, 1965. The date, August 27, 1964, is a date prior to the date of the knowledge of the Legal Remembrancer, namely, March 4, 1965, that no appeal has been filed against the Award.
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Commisoner Of Income Tax, Bombay Vs. Italindia Cotton Co. (P) Ltd | beneficially held shares of the company carrying not less than fifty-one per cent. of the voting power on the last day of the year or years in which the loss was incurred ; or(b) the Income-tax Officer is satisfied that the change in the shareholding was not effected with a view to avoiding or reducing any liability to tax." 3. Section 79 is an exception to the scheme enacted in Chapter VI for the carry forward and setting off of a loss incurred in any earlier year against the income of the relevant previous year. The provision was enacted in the Income-tax Act, 1961, for the first time in order to deny that benefit to companies not being companies in which the public are substantially interested. On its plain terms, section 79 provides that in the case of such companies, if a change in shareholding has taken place in a previous year, no loss incurred in any year prior to the previous year shall be carried forward or set off against the income of the previous year unless (a) both on the last day of the previous year and on the last day of the year or years in which the loss was incurred, the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons or (b) the Income-tax Officer is satisfied that the change in the shareholding was not effected with a view to avoiding or reducing any liability to tax. The question before us is whether the two conditions operate cumulatively or in the alternative. In other words, should both conditions exist together to nullify the prohibition against carry forward and setoff of the loss ? Upon careful consideration, we are of the opinion that the conditions are intended to operate as alternative to one another. If the terms of either clause (a) or clause (b) are satisfied, the disqualification suffered by a company, by reason of a change in the shareholding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward and set-off of losses. The benefit is available notwithstanding the change in the shareholding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the change in the shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to taxThe object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companies which had sustained losses in earlier years. It was not unusual for a group of persons to acquire a company, which had suffered losses in the earlier years, in the expectation that the company would earn substantial profits after such acquisition, and they would benefit by reduction of the tax liability on those profits on a set-off of losses carried forward from earlier years before the acquisition. The acquisition of company in such a case would be effected by a change in its shareholding and the control over the company could be ensured by securing the beneficial ownership of shares carrying 51 per cent. or more of the voting power. If the change in the shareholding did not result in holding voting power of 51 per cent. or it was established that the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company and the disqualification imposed on the company because of the change in its shareholding would stand removed4. But there may be a change in the shareholding and it may result in change of control of the company. Yet, every such change of shareholding need not fall within the prohibition. There can be a case where persons already owning a shareholding carrying less than 51 per cent. of the voting power in the company may enlarge their shareholding during the previous year in order that control over the company may pass to them. Attempts to acquire control over a company by controlling a majority of the shareholding are not unknown. The acquisition of control over a company provides source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is effected with a view to avoiding or reducing some liability to tax. The change is effected not for business or commercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the shareholding will tend to bring about the result which section 79 was designed to prevent. In our opinion, to avoid falling within the scope of section 79, it is sufficient for the assessee to show that the case attracts either clause (a) or clause (b). If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of the Income-tax Act, entitling him to claim a carry forward and set-off of losses, suffered by the company in an earlier year or years against the income of the previous year. We are fortified in our conclusion by the view expressed by the Gujarat High Court in CIT v. Shri Subhlaxmi Mills Ltd. [1983] 143 ITR 863, and by the Madras High Court in CIT v. Saravanabhava Mills P. Ltd. [1983] 143 ITR 856In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed | 0[ds]Upon careful consideration, we are of the opinion that the conditions are intended to operate as alternative to one another. If the terms of either clause (a) or clause (b) are satisfied, the disqualification suffered by a company, by reason of a change in the shareholding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward andof losses. The benefit is available notwithstanding the change in the shareholding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the change in the shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to taxThe object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companies which had sustained losses in earlier years. It was not unusual for a group of persons to acquire a company, which had suffered losses in the earlier years, in the expectation that the company would earn substantial profits after such acquisition, and they would benefit by reduction of the tax liability on those profits on aof losses carried forward from earlier years before the acquisition. The acquisition of company in such a case would be effected by a change in its shareholding and the control over the company could be ensured by securing the beneficial ownership of shares carrying 51 per cent. or more of the voting power. If the change in the shareholding did not result in holding voting power of 51 per cent. or it was established that the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company and the disqualification imposed on the company because of the change in its shareholding would stand removed4. But there may be a change in the shareholding and it may result in change of control of the company. Yet, every such change of shareholding need not fall within the prohibition. There can be a case where persons already owning a shareholding carrying less than 51 per cent. of the voting power in the company may enlarge their shareholding during the previous year in order that control over the company may pass to them. Attempts to acquire control over a company by controlling a majority of the shareholding are not unknown. The acquisition of control over a company provides source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is effected with a view to avoiding or reducing some liability to tax. The change is effected not for business or commercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the shareholding will tend to bring about the result which section 79 was designed to prevent. In our opinion, to avoid falling within the scope of section 79, it is sufficient for the assessee to show that the case attracts either clause (a) or clause (b). If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of theAct, entitling him to claim a carry forward andof losses, suffered by the company in an earlier year or years against the income of the previous year. We are fortified in our conclusion by the view expressed by the Gujarat High Court in CIT v. Shri Subhlaxmi Mills Ltd. [1983] 143 ITR 863, and by the Madras High Court in CIT v. Saravanabhava Mills P. Ltd. [1983] 143 ITR 856In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed | 0 | 2,085 | 762 | ### 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:
beneficially held shares of the company carrying not less than fifty-one per cent. of the voting power on the last day of the year or years in which the loss was incurred ; or(b) the Income-tax Officer is satisfied that the change in the shareholding was not effected with a view to avoiding or reducing any liability to tax." 3. Section 79 is an exception to the scheme enacted in Chapter VI for the carry forward and setting off of a loss incurred in any earlier year against the income of the relevant previous year. The provision was enacted in the Income-tax Act, 1961, for the first time in order to deny that benefit to companies not being companies in which the public are substantially interested. On its plain terms, section 79 provides that in the case of such companies, if a change in shareholding has taken place in a previous year, no loss incurred in any year prior to the previous year shall be carried forward or set off against the income of the previous year unless (a) both on the last day of the previous year and on the last day of the year or years in which the loss was incurred, the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons or (b) the Income-tax Officer is satisfied that the change in the shareholding was not effected with a view to avoiding or reducing any liability to tax. The question before us is whether the two conditions operate cumulatively or in the alternative. In other words, should both conditions exist together to nullify the prohibition against carry forward and setoff of the loss ? Upon careful consideration, we are of the opinion that the conditions are intended to operate as alternative to one another. If the terms of either clause (a) or clause (b) are satisfied, the disqualification suffered by a company, by reason of a change in the shareholding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward and set-off of losses. The benefit is available notwithstanding the change in the shareholding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the change in the shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to taxThe object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companies which had sustained losses in earlier years. It was not unusual for a group of persons to acquire a company, which had suffered losses in the earlier years, in the expectation that the company would earn substantial profits after such acquisition, and they would benefit by reduction of the tax liability on those profits on a set-off of losses carried forward from earlier years before the acquisition. The acquisition of company in such a case would be effected by a change in its shareholding and the control over the company could be ensured by securing the beneficial ownership of shares carrying 51 per cent. or more of the voting power. If the change in the shareholding did not result in holding voting power of 51 per cent. or it was established that the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company and the disqualification imposed on the company because of the change in its shareholding would stand removed4. But there may be a change in the shareholding and it may result in change of control of the company. Yet, every such change of shareholding need not fall within the prohibition. There can be a case where persons already owning a shareholding carrying less than 51 per cent. of the voting power in the company may enlarge their shareholding during the previous year in order that control over the company may pass to them. Attempts to acquire control over a company by controlling a majority of the shareholding are not unknown. The acquisition of control over a company provides source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is effected with a view to avoiding or reducing some liability to tax. The change is effected not for business or commercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the shareholding will tend to bring about the result which section 79 was designed to prevent. In our opinion, to avoid falling within the scope of section 79, it is sufficient for the assessee to show that the case attracts either clause (a) or clause (b). If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of the Income-tax Act, entitling him to claim a carry forward and set-off of losses, suffered by the company in an earlier year or years against the income of the previous year. We are fortified in our conclusion by the view expressed by the Gujarat High Court in CIT v. Shri Subhlaxmi Mills Ltd. [1983] 143 ITR 863, and by the Madras High Court in CIT v. Saravanabhava Mills P. Ltd. [1983] 143 ITR 856In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed
### Response:
0
### Explanation:
Upon careful consideration, we are of the opinion that the conditions are intended to operate as alternative to one another. If the terms of either clause (a) or clause (b) are satisfied, the disqualification suffered by a company, by reason of a change in the shareholding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward andof losses. The benefit is available notwithstanding the change in the shareholding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the change in the shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to taxThe object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companies which had sustained losses in earlier years. It was not unusual for a group of persons to acquire a company, which had suffered losses in the earlier years, in the expectation that the company would earn substantial profits after such acquisition, and they would benefit by reduction of the tax liability on those profits on aof losses carried forward from earlier years before the acquisition. The acquisition of company in such a case would be effected by a change in its shareholding and the control over the company could be ensured by securing the beneficial ownership of shares carrying 51 per cent. or more of the voting power. If the change in the shareholding did not result in holding voting power of 51 per cent. or it was established that the shares of the company carrying not less than 51 per cent. of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company and the disqualification imposed on the company because of the change in its shareholding would stand removed4. But there may be a change in the shareholding and it may result in change of control of the company. Yet, every such change of shareholding need not fall within the prohibition. There can be a case where persons already owning a shareholding carrying less than 51 per cent. of the voting power in the company may enlarge their shareholding during the previous year in order that control over the company may pass to them. Attempts to acquire control over a company by controlling a majority of the shareholding are not unknown. The acquisition of control over a company provides source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is effected with a view to avoiding or reducing some liability to tax. The change is effected not for business or commercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the shareholding will tend to bring about the result which section 79 was designed to prevent. In our opinion, to avoid falling within the scope of section 79, it is sufficient for the assessee to show that the case attracts either clause (a) or clause (b). If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of theAct, entitling him to claim a carry forward andof losses, suffered by the company in an earlier year or years against the income of the previous year. We are fortified in our conclusion by the view expressed by the Gujarat High Court in CIT v. Shri Subhlaxmi Mills Ltd. [1983] 143 ITR 863, and by the Madras High Court in CIT v. Saravanabhava Mills P. Ltd. [1983] 143 ITR 856In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed
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B.N. Nagarajan and Others Vs. State of Karnataka and Others Etc | to State of Mysore and Another v. S. V. Narayanappa(1) and R. N. Nanjundappa v. T. Thimmiah and Another(2). In the former this Court observed: "Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence."In Nanjundappas case also the question of regularisation of an appointment arose and this Court dealt with it thus: "........ Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not to to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution.The case has, for both the above reasons, to be decided on the footing that all though the relevant period the promotees held appointments as Assistant Engineers in a non- substantive capacity, i.e. either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made "substantively in clear vacancies." 6. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the Recruitment Rules. The relevant portion of that amendment is contained in item 3 thereof which is reproduced below: "3. To rule 2 of the following proviso shall be added and shall be deemed always to have been added, namely- "Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the period of production shall be the following, namely- "Qualifications :......................" It is common ground between the parties that the posts comprised in the cadre of Assistant Engineers constituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 1958. | 1[ds]In this view of the matter we cannot agree with Mr. Nariman that the scope of the writ petitions is limited as stated by himIt is common ground between the parties that the posts comprised in the cadre of Assistant Engineers constituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 19586. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the Recruitment RulesIn this view of the matter we cannot agree with Mr. Nariman that the scope of the writ petitions is limited as stated by himApart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution.The case has, for both the above reasons, to be decided on the footing that all though the relevant period the promotees held appointments as Assistant Engineers in a nonsubstantive capacity, i.e. either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made "substantively in clear vacancies."6. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the RecruitmentRules. The relevant portion of thatamendment is contained in item 3 thereof which is reproduced below: "3. | 1 | 4,779 | 878 | ### 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:
to State of Mysore and Another v. S. V. Narayanappa(1) and R. N. Nanjundappa v. T. Thimmiah and Another(2). In the former this Court observed: "Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence."In Nanjundappas case also the question of regularisation of an appointment arose and this Court dealt with it thus: "........ Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not to to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution.The case has, for both the above reasons, to be decided on the footing that all though the relevant period the promotees held appointments as Assistant Engineers in a non- substantive capacity, i.e. either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made "substantively in clear vacancies." 6. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the Recruitment Rules. The relevant portion of that amendment is contained in item 3 thereof which is reproduced below: "3. To rule 2 of the following proviso shall be added and shall be deemed always to have been added, namely- "Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the period of production shall be the following, namely- "Qualifications :......................" It is common ground between the parties that the posts comprised in the cadre of Assistant Engineers constituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 1958.
### Response:
1
### Explanation:
In this view of the matter we cannot agree with Mr. Nariman that the scope of the writ petitions is limited as stated by himIt is common ground between the parties that the posts comprised in the cadre of Assistant Engineers constituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 19586. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the Recruitment RulesIn this view of the matter we cannot agree with Mr. Nariman that the scope of the writ petitions is limited as stated by himApart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution.The case has, for both the above reasons, to be decided on the footing that all though the relevant period the promotees held appointments as Assistant Engineers in a nonsubstantive capacity, i.e. either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made "substantively in clear vacancies."6. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of October, 1961) to the RecruitmentRules. The relevant portion of thatamendment is contained in item 3 thereof which is reproduced below: "3.
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M/S Godavari Finance Co Vs. Degala Satyanarayanamma | What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorably insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.17. The question came up for consideration before this Court in Rajasthan State Road Transport Corporation vs. Kailash Nth Kothari and others : (1997) 7 SCC 481where the owner of a vehicle rented the bus to Rajasthan State Road Transport Corporation. It met with an accident. Despite the fact that the driver of the bus was an employee of the registered owner of the vehicle, it was held: - "Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC." 18. The question again came up for consideration recently before this Court in National Insurance Co. Ltd. vs. Deepa Devi and others : 2007 (14) SCALE 168. This Court in that case was dealing with a matter where the vehicle in question was requisitioned by the State Government while holding that the owner of the vehicle would not be liable it was opined:- "10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, Respondent Nos. 3 and 4 Page 4561 continued to be the registered owner of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of its power conferred upon it under the Representation of People Act. A vehicle is requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in-charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/ or its officers, the owner is only entitled to payment of compensation therefore in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that the Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view." In so opining the Court followed Kailash Nath Kothari (supra). The legal principles as noticed hereinbefore, clearly show that the appellant was not liable to pay any compensation to the claimants. | 1[ds]13. In case of a motor vehicle which is subjected to a hire purchase agreement, the financer cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financer being the owner would be liable to pay damages for the motor accident.In terms of the aforesaid provisions, the Tribunal is required to issue a notice to the insurer and after giving the parties, including the insurer, an opportunity of being heard, it must hold an inquiry into the claims and determine the person who would be liable therefor. It can make an award and while doing so it can specify the amount which could be paid by the insured or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.16. An application for payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorably insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role. | 1 | 2,664 | 410 | ### 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:
What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorably insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.17. The question came up for consideration before this Court in Rajasthan State Road Transport Corporation vs. Kailash Nth Kothari and others : (1997) 7 SCC 481where the owner of a vehicle rented the bus to Rajasthan State Road Transport Corporation. It met with an accident. Despite the fact that the driver of the bus was an employee of the registered owner of the vehicle, it was held: - "Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC." 18. The question again came up for consideration recently before this Court in National Insurance Co. Ltd. vs. Deepa Devi and others : 2007 (14) SCALE 168. This Court in that case was dealing with a matter where the vehicle in question was requisitioned by the State Government while holding that the owner of the vehicle would not be liable it was opined:- "10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, Respondent Nos. 3 and 4 Page 4561 continued to be the registered owner of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of its power conferred upon it under the Representation of People Act. A vehicle is requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in-charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/ or its officers, the owner is only entitled to payment of compensation therefore in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that the Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view." In so opining the Court followed Kailash Nath Kothari (supra). The legal principles as noticed hereinbefore, clearly show that the appellant was not liable to pay any compensation to the claimants.
### Response:
1
### Explanation:
13. In case of a motor vehicle which is subjected to a hire purchase agreement, the financer cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financer being the owner would be liable to pay damages for the motor accident.In terms of the aforesaid provisions, the Tribunal is required to issue a notice to the insurer and after giving the parties, including the insurer, an opportunity of being heard, it must hold an inquiry into the claims and determine the person who would be liable therefor. It can make an award and while doing so it can specify the amount which could be paid by the insured or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.16. An application for payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorably insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.
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INDIAN BANK Vs. K. PAPPIREDDIYAR | the other hand, reliance was placed by learned Counsel appearing on behalf of the first respondent on a recent judgment of this Court in ITC Limited v Blue Coast Hotels Limited , in support of the submission, that no security interest could be created in respect of agricultural land, having due regard to the provisions of Section 31(i). Learned Counsel adverted to the findings which were recorded in the judgment of the DRAT. 7. Section 31(i) of the SARFAESI Act stipulates thus : 31. Provisions of this Act not to apply in certain cases.- The provisions of this Act shall not apply to… (i) any security interest created in agricultural land; The expression security interest was defined, prior to its amendment, in Section 2(zf) as follows : 2(zf) security interest means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in section 31; Clause (zf) was substituted with effect from 1 September 2016 by Act 44 of 2016. At present, the expression is defined as follows : (zf) security interest means right, title or interest of any kind, other than those specified in section 31, upon property created in favour of any secured creditor and includes— (i) any mortgage, charge, hypothecation, assignment or any right, title or interest of any kind, on tangible asset, retained by the secured creditor as an owner of the property, given on hire or financial lease or conditional sale or under any other contract which secures the obligation to pay any unpaid portion of the purchase price of the asset or an obligation incurred or credit provided to enable the borrower to acquire the tangible asset; or (ii) such right, title or interest in any intangible asset or assignment or licence of such intangible asset which secures the obligation to pay any unpaid portion of the purchase price of the intangible asset or the obligation incurred or any credit provided to enable the borrower to acquire the intangible asset or licence of intangible asset;. 8. The expression security interest, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression agricultural land. Whether a particular piece of land is agricultural in nature is a question of fact. In the decision of this Court in Blue Coast Hotels Limited a security interest was created in respect of several parcels of land which were meant to be a part of a single unit, for establishing a hotel in Goa. Some of the parcels were purchased by the debtor from agriculturists and were entered as agricultural lands in the revenue records. The debtor had applied to the revenue authority for the conversion of the land to non-agricultural use, but the applications were pending. This Court held that the fact that the debtor had created a security interest was indicative of the position that the parties did not treat the land as agricultural land. The undisputed position was that the hotel was located on 1,82,225 square meters of land of which 2,335 square metres were used for growing vegetables and fruits for captive consumption. In this background, the two-judge Bench of this Court held that : 49. The mortgage is thus intended to cover the entire property of the Goa Hotel. Prima facie, apart from the fact that the parties themselves understood that the lands in question are not agricultural, it also appears that having regard to the use to which they are put and the purpose of such use, they are indeed not agricultural. The Court further held that: 57…having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court mis- directed itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date. 9. The classification of land in the revenue records as agricultural is not dispositive or conclusive of the question whether the SARFAESI Act does or does not apply. Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart. 10. The Division Bench of the Madras High Court has failed to adjudicate on the basic issue as to whether the land in respect of which the security interest was created, was agricultural in nature. The DRT rejected the objection of the debtor that the land was agricultural. In appeal, the DRAT reversed that finding. Apart from referring to the position in law, the impugned judgment of the High Court contains no discussion of the material which was relied upon by the parties in support of their respective cases; the Bank urging that the land was not agricultural while the debtor urged that it was. Both having regard to the two-judge Bench decision in Blue Coast Hotels Limited and as explained above, the question as to whether the land is agricultural has to be determined on the basis of the totality of facts and circumstances including the nature and character of the land, the use to which it was put and the purpose and intent of the parties on the date on which the security interest was created. In the absence of a specific finding, we are of the view that it would be appropriate and proper to set aside the judgment of the High Court and to remit the proceedings for being considered afresh. | 1[ds]8. The expression security interest, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression agricultural land. Whether a particular piece of land is agricultural in nature is a question of fact. In the decision of this Court in Blue Coast Hotels Limiteda security interest was created in respect of several parcels of land which were meant to be a part of a single unit, for establishing a hotel in Goa. Some of the parcels were purchased by the debtor from agriculturists and were entered as agricultural lands in the revenue records. The debtor had applied to the revenue authority for the conversion of the land tol use, but the applications were pending. This Court held that the fact that the debtor had created a security interest was indicative of the position that the parties did not treat the land as agricultural land. The undisputed position was that the hotel was located on 1,82,225 square meters of land of which 2,335 square metres were used for growing vegetables and fruits for captive consumption. In this background, thee Bench of this Court held that :49. The mortgage is thus intended to cover the entire property of the Goa Hotel. Prima facie, apart from the fact that the parties themselves understood that the lands in question are not agricultural, it also appears that having regard to the use to which they are put and the purpose of such use, they are indeed not agriculturalThe Court further held that:57…having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court misdirected itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date9. The classification of land in the revenue records as agricultural is not dispositive or conclusive of the question whether the SARFAESI Act does or does not apply. Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart10. The Division Bench of the Madras High Court has failed to adjudicate on the basic issue as to whether the land in respect of which the security interest was created, was agricultural in nature. The DRT rejected the objection of the debtor that the land was agricultural. In appeal, the DRAT reversed that finding. Apart from referring to the position in law, the impugned judgment of the High Court contains no discussion of the material which was relied upon by the parties in support of their respective cases; the Bank urging that the land was not agricultural while the debtor urged that it was. Both having regard to thee Bench decision in Blue Coast Hotels Limited and as explained above, the question as to whether the land is agricultural has to be determined on the basis of the totality of facts and circumstances including the nature and character of the land, the use to which it was put and the purpose and intent of the parties on the date on which the security interest was created. In the absence of a specific finding, we are of the view that it would be appropriate and proper to set aside the judgment of the High Court and to remit the proceedings for being considered afresh. | 1 | 1,856 | 688 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the other hand, reliance was placed by learned Counsel appearing on behalf of the first respondent on a recent judgment of this Court in ITC Limited v Blue Coast Hotels Limited , in support of the submission, that no security interest could be created in respect of agricultural land, having due regard to the provisions of Section 31(i). Learned Counsel adverted to the findings which were recorded in the judgment of the DRAT. 7. Section 31(i) of the SARFAESI Act stipulates thus : 31. Provisions of this Act not to apply in certain cases.- The provisions of this Act shall not apply to… (i) any security interest created in agricultural land; The expression security interest was defined, prior to its amendment, in Section 2(zf) as follows : 2(zf) security interest means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in section 31; Clause (zf) was substituted with effect from 1 September 2016 by Act 44 of 2016. At present, the expression is defined as follows : (zf) security interest means right, title or interest of any kind, other than those specified in section 31, upon property created in favour of any secured creditor and includes— (i) any mortgage, charge, hypothecation, assignment or any right, title or interest of any kind, on tangible asset, retained by the secured creditor as an owner of the property, given on hire or financial lease or conditional sale or under any other contract which secures the obligation to pay any unpaid portion of the purchase price of the asset or an obligation incurred or credit provided to enable the borrower to acquire the tangible asset; or (ii) such right, title or interest in any intangible asset or assignment or licence of such intangible asset which secures the obligation to pay any unpaid portion of the purchase price of the intangible asset or the obligation incurred or any credit provided to enable the borrower to acquire the intangible asset or licence of intangible asset;. 8. The expression security interest, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression agricultural land. Whether a particular piece of land is agricultural in nature is a question of fact. In the decision of this Court in Blue Coast Hotels Limited a security interest was created in respect of several parcels of land which were meant to be a part of a single unit, for establishing a hotel in Goa. Some of the parcels were purchased by the debtor from agriculturists and were entered as agricultural lands in the revenue records. The debtor had applied to the revenue authority for the conversion of the land to non-agricultural use, but the applications were pending. This Court held that the fact that the debtor had created a security interest was indicative of the position that the parties did not treat the land as agricultural land. The undisputed position was that the hotel was located on 1,82,225 square meters of land of which 2,335 square metres were used for growing vegetables and fruits for captive consumption. In this background, the two-judge Bench of this Court held that : 49. The mortgage is thus intended to cover the entire property of the Goa Hotel. Prima facie, apart from the fact that the parties themselves understood that the lands in question are not agricultural, it also appears that having regard to the use to which they are put and the purpose of such use, they are indeed not agricultural. The Court further held that: 57…having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court mis- directed itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date. 9. The classification of land in the revenue records as agricultural is not dispositive or conclusive of the question whether the SARFAESI Act does or does not apply. Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart. 10. The Division Bench of the Madras High Court has failed to adjudicate on the basic issue as to whether the land in respect of which the security interest was created, was agricultural in nature. The DRT rejected the objection of the debtor that the land was agricultural. In appeal, the DRAT reversed that finding. Apart from referring to the position in law, the impugned judgment of the High Court contains no discussion of the material which was relied upon by the parties in support of their respective cases; the Bank urging that the land was not agricultural while the debtor urged that it was. Both having regard to the two-judge Bench decision in Blue Coast Hotels Limited and as explained above, the question as to whether the land is agricultural has to be determined on the basis of the totality of facts and circumstances including the nature and character of the land, the use to which it was put and the purpose and intent of the parties on the date on which the security interest was created. In the absence of a specific finding, we are of the view that it would be appropriate and proper to set aside the judgment of the High Court and to remit the proceedings for being considered afresh.
### Response:
1
### Explanation:
8. The expression security interest, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression agricultural land. Whether a particular piece of land is agricultural in nature is a question of fact. In the decision of this Court in Blue Coast Hotels Limiteda security interest was created in respect of several parcels of land which were meant to be a part of a single unit, for establishing a hotel in Goa. Some of the parcels were purchased by the debtor from agriculturists and were entered as agricultural lands in the revenue records. The debtor had applied to the revenue authority for the conversion of the land tol use, but the applications were pending. This Court held that the fact that the debtor had created a security interest was indicative of the position that the parties did not treat the land as agricultural land. The undisputed position was that the hotel was located on 1,82,225 square meters of land of which 2,335 square metres were used for growing vegetables and fruits for captive consumption. In this background, thee Bench of this Court held that :49. The mortgage is thus intended to cover the entire property of the Goa Hotel. Prima facie, apart from the fact that the parties themselves understood that the lands in question are not agricultural, it also appears that having regard to the use to which they are put and the purpose of such use, they are indeed not agriculturalThe Court further held that:57…having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court misdirected itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date9. The classification of land in the revenue records as agricultural is not dispositive or conclusive of the question whether the SARFAESI Act does or does not apply. Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart10. The Division Bench of the Madras High Court has failed to adjudicate on the basic issue as to whether the land in respect of which the security interest was created, was agricultural in nature. The DRT rejected the objection of the debtor that the land was agricultural. In appeal, the DRAT reversed that finding. Apart from referring to the position in law, the impugned judgment of the High Court contains no discussion of the material which was relied upon by the parties in support of their respective cases; the Bank urging that the land was not agricultural while the debtor urged that it was. Both having regard to thee Bench decision in Blue Coast Hotels Limited and as explained above, the question as to whether the land is agricultural has to be determined on the basis of the totality of facts and circumstances including the nature and character of the land, the use to which it was put and the purpose and intent of the parties on the date on which the security interest was created. In the absence of a specific finding, we are of the view that it would be appropriate and proper to set aside the judgment of the High Court and to remit the proceedings for being considered afresh.
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Manjusri Raha and Others Etc Vs. B.L. Gupta and Others Etc | no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certificate Ext. P-4 further shows that the deceased Raha would have got death-cum-retirement gratuity t o the extent of Rs. 13, 500/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments. If the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13, 500/- to. Rs. 90, 000 the total amount would come to Rs. 1, 03, 500/- which may be rounded off to roughly Rs. 1, 00, 000/-. In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1, 00, 000/-, and the Courts below erred in completely overlooking these two important aspects which we have discussed.4. It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insurance Companies, but unfortunately the Motor Vehicles Act has taken a very narrow view by limiting the liability of the Insurance Companies under s. 95 (2) (d) to Rs. 2, 000/- only in case of a third party.While our Legislature has made laws to cover every possible situation, yet it is well nigh impossible to make provisions for all kinds of situations. Nevertheless where the social need of the hour requires that precious human lives lost in motor accidents leaving a trail of economic disaster in the shape of their unprovided for families call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation particularly through Insurance Companies. It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Our country can ill-afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the previous life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000/- or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000/-. Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par- ticular conveyance and the value of his life is considerably r educed if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to. suggest such a distinction. We hope and trust that our law-makers will give. serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to. suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest Court of the country do not become a mere pious wish.In M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (A.I.R 1971 S.C. 1624.) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/- upto a maximum of Rs. 20, 000/- on the plain words of s. 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor accidents.5. In P.B. Kader &Ors. v. Thatcharoma and Ors. (A.I.R. 1970 Kerala 241.) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows:"It is sad that an Indian life should be so devalued by an Indian law as to. cost only Rs. 2, 000/-, apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/- per individual, involved in an accident, to make it more realistic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice."6. We find ourselves in complete agreement with the observations made by the Kerala High Court in the aforesaid case and we would like to remind the law-makers that the time has come to take a more humane an d practical view of things while passing statute like the Motor Vehicles Act in regulating compensation payable by Insurance Companies to victims of motor accidents. We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time. | 0[ds]There can be no doubt that if really a settlement has been reached between Gupta and Raha then no further decree can be passed as against Gupta. The appellant further undertook to pay Rs. 10, 000/- to Shastri in fulfilment of her claim. As Rs. 10, 000/- has already been paid to Shastri with the result that Bhuta has yet to pay Rs. 20, 000/- being her share tohave perused the plaint before the Claims Tribunal, which is rather loosely drafted, but it clearly contains the relief of compensation even against Gupta and Ram Swaroop driver. The High Court has pointed out that even though there is no clear plea of negligence in the claim of Raha, the facts alleged and proved in the case dearly show that Ram Swaroop the driver of the M.P. Speedways Company was both rash and negligent. Pleadings have to be interpreted not with forma- l istie rigour but with latitude or awareness of low legal literacy of poor people. We fully agree with the finding of the High Court and see no reason to disturb it. We also agree with the order of the High Court by which it makes Gupta and Bhuta jointly and severally liable. That was the only decree which could have been passed in the circum- stances.Coming now to the appeal filed by Raha, counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is grossly inadequate and certain important factors have not been taken into consideration. On a perusal of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Satyendra Nath Raha would have got upto the age of 55 years which has been taken at Rs. 1, 20, 000/- and after deducting half which would normally have been spent, the actual income lost to the family was Rs. 60, 000/-. It seems to us, however, that in making the calculation, the Claims Tribunal and the High Court overlooked two important and vital considerations. In the first place, while the admitted position was that the deceased Satyendra Nath Raha was working in the grade of Rs 590-30-830-35-900 and was getting a salary of Rs. 620/- p.m. at the time of his death, the Courts below have not taken into account the salary which he would have earned while reaching the maximum of his grade long before his retirement. It is admitted that the deceased Satyendra Nath Raha was 37 years of age at the time of the accident and at this rate he would have reached the maximum of the grade of Rs. 900/- at the age of 46 years i.e. full 9 years before his superannuation. The claimant has produced a certificate Ext. P-4 from the office of the Accountant General, Madhya Pradesh, Gwalior, which shows that from April 11, 1962 (i.e. the date next to the date of the death of Satyendra Nath Raha) to October 15, 1980 which would be the last working day of the deceased Raha, the deceased Raha would have drawn Rs, 1, 89, 402 including the increments earned and the maximum grade drawn. This figure m ay be rounded off to Rs. 1, 88, 000/-. Even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of income tax and other charges, the actual income lost to the family including the value of the estate and the loss to. the dependents would be Rs. 94, 000/-. This will be a fair estimate which does not take into account the economic value of the deprivation to the wife of her husbands company for ever and the shock felt by the children. It was suggested by the High Court that as the deceased Raha was not a permanent employee, the amount taken into account by the Compensation Tribunal was correct. This is, however, not a consideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent. On the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount. In these circumstances, therefore, we think that the amount of Rs. 90, 000/- would represent the correct compensation so far as the salary part of the deceased Raha is concerned.The Courts below have al so not considered the effect of the pensionary benefits which the deceased Raha would undoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of superannuation, whereas in the present economic conditions the life of an average Indian has increased more than two-fold. It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement. According to the certificate Ext. P -4 the deceased Raha would have been entitled to a monthly pension of Rs. 337-50 which would mean about Rs. 4, 050/- per year. There can be no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certificate Ext. P-4 further shows that the deceased Raha would have got death-cum-retirement gratuity t o the extent of Rs. 13, 500/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments. If the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13, 500/- to. Rs. 90, 000 the total amount would come to Rs. 1, 03, 500/- which may be rounded off to roughly Rs. 1, 00, 000/-. In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1, 00, 000/-, and the Courts below erred in completely overlooking these two important aspects which we haveis true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Our country can ill-afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the previous life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000/- or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000/-. Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par- ticular conveyance and the value of his life is considerably r educed if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to. suggest such a distinction. We hope and trust that our law-makers will give. serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to. suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest Court of the country do not become a mere pious wish.In M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (A.I.R 1971 S.C. 1624.) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/- upto a maximum of Rs. 20, 000/- on the plain words of s. 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motorfind ourselves in complete agreement with the observations made by the Kerala High Court in the aforesaid case and we would like to remind the law-makers that the time has come to take a more humane an d practical view of things while passing statute like the Motor Vehicles Act in regulating compensation payable by Insurance Companies to victims of motor accidents. We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time. | 0 | 3,768 | 1,792 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certificate Ext. P-4 further shows that the deceased Raha would have got death-cum-retirement gratuity t o the extent of Rs. 13, 500/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments. If the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13, 500/- to. Rs. 90, 000 the total amount would come to Rs. 1, 03, 500/- which may be rounded off to roughly Rs. 1, 00, 000/-. In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1, 00, 000/-, and the Courts below erred in completely overlooking these two important aspects which we have discussed.4. It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insurance Companies, but unfortunately the Motor Vehicles Act has taken a very narrow view by limiting the liability of the Insurance Companies under s. 95 (2) (d) to Rs. 2, 000/- only in case of a third party.While our Legislature has made laws to cover every possible situation, yet it is well nigh impossible to make provisions for all kinds of situations. Nevertheless where the social need of the hour requires that precious human lives lost in motor accidents leaving a trail of economic disaster in the shape of their unprovided for families call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation particularly through Insurance Companies. It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Our country can ill-afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the previous life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000/- or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000/-. Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par- ticular conveyance and the value of his life is considerably r educed if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to. suggest such a distinction. We hope and trust that our law-makers will give. serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to. suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest Court of the country do not become a mere pious wish.In M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (A.I.R 1971 S.C. 1624.) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/- upto a maximum of Rs. 20, 000/- on the plain words of s. 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor accidents.5. In P.B. Kader &Ors. v. Thatcharoma and Ors. (A.I.R. 1970 Kerala 241.) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows:"It is sad that an Indian life should be so devalued by an Indian law as to. cost only Rs. 2, 000/-, apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/- per individual, involved in an accident, to make it more realistic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice."6. We find ourselves in complete agreement with the observations made by the Kerala High Court in the aforesaid case and we would like to remind the law-makers that the time has come to take a more humane an d practical view of things while passing statute like the Motor Vehicles Act in regulating compensation payable by Insurance Companies to victims of motor accidents. We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time.
### Response:
0
### Explanation:
to the wife of her husbands company for ever and the shock felt by the children. It was suggested by the High Court that as the deceased Raha was not a permanent employee, the amount taken into account by the Compensation Tribunal was correct. This is, however, not a consideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent. On the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount. In these circumstances, therefore, we think that the amount of Rs. 90, 000/- would represent the correct compensation so far as the salary part of the deceased Raha is concerned.The Courts below have al so not considered the effect of the pensionary benefits which the deceased Raha would undoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of superannuation, whereas in the present economic conditions the life of an average Indian has increased more than two-fold. It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement. According to the certificate Ext. P -4 the deceased Raha would have been entitled to a monthly pension of Rs. 337-50 which would mean about Rs. 4, 050/- per year. There can be no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certificate Ext. P-4 further shows that the deceased Raha would have got death-cum-retirement gratuity t o the extent of Rs. 13, 500/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments. If the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13, 500/- to. Rs. 90, 000 the total amount would come to Rs. 1, 03, 500/- which may be rounded off to roughly Rs. 1, 00, 000/-. In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1, 00, 000/-, and the Courts below erred in completely overlooking these two important aspects which we haveis true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Our country can ill-afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the previous life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000/- or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000/-. Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par- ticular conveyance and the value of his life is considerably r educed if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to. suggest such a distinction. We hope and trust that our law-makers will give. serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to. suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest Court of the country do not become a mere pious wish.In M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (A.I.R 1971 S.C. 1624.) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/- upto a maximum of Rs. 20, 000/- on the plain words of s. 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motorfind ourselves in complete agreement with the observations made by the Kerala High Court in the aforesaid case and we would like to remind the law-makers that the time has come to take a more humane an d practical view of things while passing statute like the Motor Vehicles Act in regulating compensation payable by Insurance Companies to victims of motor accidents. We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time.
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Yash Vardhan Mall Vs. Tejash Doshi | Side), 1914 (hereinafter referred to as the `Rules) to hold that the affidavit filed in accordance with Rule 26 thereof did not disclose legal grounds of objection to the grant of probate. The learned Single Judge further held that the Appellant did not have caveatable interest and discharged the caveat. The Division Bench held that an executor of a previous Will cannot be denied a right to lodge a caveat in respect of a subsequent Will of the same testator. Even if the executor is not a legatee under the Will, his obligation is to obtain a probate of the Will and to administer the estate in accordance with the terms of the Will. As the execution of the Will dated 01.03.2013 was not disputed by the Respondent, the Division Bench held that the Appellant has sufficient interest in the estate and was entitled to lodge a caveat by virtue of his position as a trustee in respect of the trust created by the first Will. Having held that the Appellant has a right to object to the grant of probate of the Will dated 22.04.2017, the Division Bench refused to interfere with the order of the learned Single Judge for the reason that the affidavit filed in support of the caveat did not disclose any ground to doubt the due execution of the Will dated 22.04.2013.5. The Rules relevant for the purpose of adjudication of the dispute in this case are as follows:"24. Caveat. - Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No.13)."25. Affidavit in support of caveat.-Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.""30. Trial of preliminary issue.-The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveators interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be."6. An affidavit filed in support of the caveat according to Rule 25 shall state the right and interest of the caveator and the grounds of the objections to the application. The affidavit filed in support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed her last Will and testament on 01.03.2013 which was registered on 22.05.2013. There is a reference to the Will dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her last Will and testament. It was further mentioned in the affidavit that the Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the last Will and testament of Smt.Shrutika Doshi. The Appellant did not doubt the execution of the Will dated 22.04.2013, but asserted that the Will dated 01.03.2013 which was registered on 22.05.2013 was her last Will.7. After holding that the Appellant has a caveatable interest to object to the grant of probate of the Will dated 22.04.2013, the High Court refused to interfere with the order of the learned Single Judge on the basis that the affidavit filed in support of the caveat did not doubt the execution of the Will. As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25. | 1[ds]As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25. | 1 | 1,504 | 376 | ### 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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Side), 1914 (hereinafter referred to as the `Rules) to hold that the affidavit filed in accordance with Rule 26 thereof did not disclose legal grounds of objection to the grant of probate. The learned Single Judge further held that the Appellant did not have caveatable interest and discharged the caveat. The Division Bench held that an executor of a previous Will cannot be denied a right to lodge a caveat in respect of a subsequent Will of the same testator. Even if the executor is not a legatee under the Will, his obligation is to obtain a probate of the Will and to administer the estate in accordance with the terms of the Will. As the execution of the Will dated 01.03.2013 was not disputed by the Respondent, the Division Bench held that the Appellant has sufficient interest in the estate and was entitled to lodge a caveat by virtue of his position as a trustee in respect of the trust created by the first Will. Having held that the Appellant has a right to object to the grant of probate of the Will dated 22.04.2017, the Division Bench refused to interfere with the order of the learned Single Judge for the reason that the affidavit filed in support of the caveat did not disclose any ground to doubt the due execution of the Will dated 22.04.2013.5. The Rules relevant for the purpose of adjudication of the dispute in this case are as follows:"24. Caveat. - Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No.13)."25. Affidavit in support of caveat.-Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.""30. Trial of preliminary issue.-The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveators interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be."6. An affidavit filed in support of the caveat according to Rule 25 shall state the right and interest of the caveator and the grounds of the objections to the application. The affidavit filed in support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed her last Will and testament on 01.03.2013 which was registered on 22.05.2013. There is a reference to the Will dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her last Will and testament. It was further mentioned in the affidavit that the Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the last Will and testament of Smt.Shrutika Doshi. The Appellant did not doubt the execution of the Will dated 22.04.2013, but asserted that the Will dated 01.03.2013 which was registered on 22.05.2013 was her last Will.7. After holding that the Appellant has a caveatable interest to object to the grant of probate of the Will dated 22.04.2013, the High Court refused to interfere with the order of the learned Single Judge on the basis that the affidavit filed in support of the caveat did not doubt the execution of the Will. As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25.
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As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25.
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Hope Plantations Ltd Vs. Taluk Land Board, Peermade | estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter of the two proceedings being identical, than they do in issue estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.... Next question for consideration is whether the further relevant material which a party may be permitted to bring forward in the later proceedings is confined to matters of fact, or whether what may not entirely inappositely be described as a change in the law may result in, or be an element in special circumstances enabling an issue to be re-opened. Your Lordships should appropriately, in my opinion, regard the matter as entire and approach it from the point of view of principle. If a Judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J.s judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, from reopening that issue ? I am satisfied, in agreement with both courts below, that the instant case presents special circumstances such as to require the plaintiffs to be permitted to reopen the question of construction decided against them by Walton J., that being a decision which I regard as plainly wrong. 27. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold and others v. National Westminster Bank Plc. (supra). 28. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, a different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (explanation to Rule 1) review is not permissible on the ground that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 29. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamom plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, unnecessary for us to go into the question if cardamom plantation existed at the relevant time. We, therefore, uphold the judgment of the High Court on the extent of `fuel area and `rested tea area as determined finally by this Court in CA No. 227/789 and would dismiss the appeal limited to this extent. 30. Though we have upheld the order of the High Court mainly on the grounds of res judicata and estoppel, submission of the appellant commends to us that they be given opportunity to approach the State Government to seek exemption under provisions of sub-section (3) of Section 81 of the Act. This is particularly so as a three-Judge Bench of this Court has held that supply of fuel wood to employees is for the purpose connected with the plantation, which is a later decision of the two-Judge Bench decision of this Court. Further that rested tea area is a part of tea plantation was not properly projected before this Court as has been rightly contended by Mr. Salve. It is a matter of experience and on reference to authoritative textbooks if rested tea areas are part of the plantation. 31. | 1[ds]21. Form 1 under which statements/return is to be filed requires complete details of the plantation as meant in Section 2(44) of the Act. It is to be accompanied with various annexures. The appellant never claimed exemption on the ground of Cardamom plantation existing prior to 1964. It never asked for amendment of the return/statement at any stage of the proceedings. It sought exemption on the ground of the land under the heading `fuel area. Once the matter had been determined by the Supreme Court in appeal, there was no scope for any review by Taluk Land Board to hold that there was Cardamom Plantation existing prior to 1964 in that very area. Mr. P. Krishnamrthy is right in his submissions that there was no foundation ever made for review of that part of the land falling under the `fuel area was, in fact, cardamom plantation. There was no scope for invoking the provisions of sub-section (9) and/or (9- A) of Section 85 of the Act. The two decisions of the Kerala High Court are, therefore, not quite relevant for our purposes22. High Court by its judgment dated March 15, 1977 had set aside the order of Taluk Land Board allowing exemption of 100 acres when appellant had claimed 263.83 acres as agricultural land interspersed within the boundaries of the area cultivated by the appellant. The extent of this area was to be determined by the Land Board as Taluk Land Board at the relevant time had no jurisdiction to so determine. The appellant had specifically claimed 263.83 acres of such land under the head other agricultural land interspersed. After the remand Taluk Land Board was also vested with power w.e.f. 7.7.197 to determine the extent of land under Clause (c) of Section 2(44) of the Act. That would not, however, mean that Taluk Land Board could now determine that area under this head exceeded 263.83 acres. To the extent that Taluk Land Board by its order dated July 26, 1980 upheld the claim of the appellant to 263.83 acres as agricultural land interspersed within the boundaries of the area cultivated with plantation crops cannot be failed. Though under the heads `fuel area and `rested tea area there was difference of opinion among the Chairman and other members of the Taluk Land Board there was unanimity between them on the question of area of 263.83 acres falling under the head `other agricultural land interspersed. It cannot be said that Taluk Land Board, while determining this area, did not take into consideration relevant factors as mentioned in clause (c) of Section 2(44) of the Act. We do not think it was necessary for the High Court to lay down any further guidelines than what are given in the provision and for that purpose to remand the matter again to the Taluk Land Board. We would, therefore, set aside the order of the High Court to that extent23. It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are `cause of action estoppel and `issue estoppel. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice24. As to what is issue estoppel was considered by this Court in Gopal Prasad Sinha v. State of Bihar, 1970(2) SCC 905. This case arose out of criminal prosecution, the accused was tried on a charge under Section 409IPC for having committing criminal breach of trust for Rs. 27,800/- during the period between January 31, 1960 to November 30, 1960, when he was acting as Cashier in the Public Works Department of the State. The accused contended that he had been put up on a trial in a previous case under Section 409,IPC for having committed criminal breach of trust with respect to certain amounts during the period December 8, 1960 to August 17, 1961 and in that case the High Court had acquitted him holding that he was not in charge of the cash. The point of issue-estoppel was, thus, raised by the accused. The trial Court held that the aforesaid finding of the High Court could not operate as a res judicata. High Court affirmed the decision of the trial Court. In this Court, it was contended that substantially it was the same issue that was tried during the earlier trial and if the accused was not the Cashier from December 8, 1960 to August 11, 1961, he could not be held to be Cashier from January 31, 1960 to November 11, 196027. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold and others v. National Westminster Bank Plc. (supra)28. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, a different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings29. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamom plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, unnecessary for us to go into the question if cardamom plantation existed at the relevant time. We, therefore, uphold the judgment of the High Court on the extent of `fuel area and `rested tea area as determined finally by this Court in CA No. 227/789 and would dismiss the appeal limited to this extent30. Though we have upheld the order of the High Court mainly on the grounds of res judicata and estoppel, submission of the appellant commends to us that they be given opportunity to approach the State Government to seek exemption under provisions of sub-section (3) of Section 81 of the Act. This is particularly so as a three-Judge Bench of this Court has held that supply of fuel wood to employees is for the purpose connected with the plantation, which is a later decision of the two-Judge Bench decision of this Court. Further that rested tea area is a part of tea plantation was not properly projected before this Court as has been rightly contended by Mr. Salve. It is a matter of experience and on reference to authoritative textbooks if rested tea areas are part of the plantation. | 1 | 10,081 | 1,613 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter of the two proceedings being identical, than they do in issue estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.... Next question for consideration is whether the further relevant material which a party may be permitted to bring forward in the later proceedings is confined to matters of fact, or whether what may not entirely inappositely be described as a change in the law may result in, or be an element in special circumstances enabling an issue to be re-opened. Your Lordships should appropriately, in my opinion, regard the matter as entire and approach it from the point of view of principle. If a Judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J.s judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, from reopening that issue ? I am satisfied, in agreement with both courts below, that the instant case presents special circumstances such as to require the plaintiffs to be permitted to reopen the question of construction decided against them by Walton J., that being a decision which I regard as plainly wrong. 27. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold and others v. National Westminster Bank Plc. (supra). 28. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, a different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (explanation to Rule 1) review is not permissible on the ground that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 29. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamom plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, unnecessary for us to go into the question if cardamom plantation existed at the relevant time. We, therefore, uphold the judgment of the High Court on the extent of `fuel area and `rested tea area as determined finally by this Court in CA No. 227/789 and would dismiss the appeal limited to this extent. 30. Though we have upheld the order of the High Court mainly on the grounds of res judicata and estoppel, submission of the appellant commends to us that they be given opportunity to approach the State Government to seek exemption under provisions of sub-section (3) of Section 81 of the Act. This is particularly so as a three-Judge Bench of this Court has held that supply of fuel wood to employees is for the purpose connected with the plantation, which is a later decision of the two-Judge Bench decision of this Court. Further that rested tea area is a part of tea plantation was not properly projected before this Court as has been rightly contended by Mr. Salve. It is a matter of experience and on reference to authoritative textbooks if rested tea areas are part of the plantation. 31.
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the matter again to the Taluk Land Board. We would, therefore, set aside the order of the High Court to that extent23. It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are `cause of action estoppel and `issue estoppel. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice24. As to what is issue estoppel was considered by this Court in Gopal Prasad Sinha v. State of Bihar, 1970(2) SCC 905. This case arose out of criminal prosecution, the accused was tried on a charge under Section 409IPC for having committing criminal breach of trust for Rs. 27,800/- during the period between January 31, 1960 to November 30, 1960, when he was acting as Cashier in the Public Works Department of the State. The accused contended that he had been put up on a trial in a previous case under Section 409,IPC for having committed criminal breach of trust with respect to certain amounts during the period December 8, 1960 to August 17, 1961 and in that case the High Court had acquitted him holding that he was not in charge of the cash. The point of issue-estoppel was, thus, raised by the accused. The trial Court held that the aforesaid finding of the High Court could not operate as a res judicata. High Court affirmed the decision of the trial Court. In this Court, it was contended that substantially it was the same issue that was tried during the earlier trial and if the accused was not the Cashier from December 8, 1960 to August 11, 1961, he could not be held to be Cashier from January 31, 1960 to November 11, 196027. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold and others v. National Westminster Bank Plc. (supra)28. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, a different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings29. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamom plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, unnecessary for us to go into the question if cardamom plantation existed at the relevant time. We, therefore, uphold the judgment of the High Court on the extent of `fuel area and `rested tea area as determined finally by this Court in CA No. 227/789 and would dismiss the appeal limited to this extent30. Though we have upheld the order of the High Court mainly on the grounds of res judicata and estoppel, submission of the appellant commends to us that they be given opportunity to approach the State Government to seek exemption under provisions of sub-section (3) of Section 81 of the Act. This is particularly so as a three-Judge Bench of this Court has held that supply of fuel wood to employees is for the purpose connected with the plantation, which is a later decision of the two-Judge Bench decision of this Court. Further that rested tea area is a part of tea plantation was not properly projected before this Court as has been rightly contended by Mr. Salve. It is a matter of experience and on reference to authoritative textbooks if rested tea areas are part of the plantation.
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Shiv Singh Vs. Union Of India & Ors | newly created Ferozpur Telegraph Engineering Division. They opted for Jullundur East. But they could not be posted in Jullundur East for want of vacancies. 4. The petitioner along with certain other linesmen was selection for the post of Sub-Inspector by the Divisional Engineer Telegraphs Jullundur East on 13-6-1967. He was appointed as Sub-Inspector with effect from June 16, 1967. A similar selection for the post of Sub-Inspector was, it appears, held in the Jullundur Telegraph Engineering Division. But Kamta Prasad and others were considered for promotion neither there nor in Jullundur East. The Circle Secretary. All India Telegraph Engineering Employees Union and Linesmen Staff and Class III Union, Jullundur Branch complained to the Post Master General, Punjab Circle, by letter, dated, May 28, 1968 that the Divisional Engineer Telegraph Jullundur East had not considered the optees for appointment as Sub-Inspectors. The Post Master General made an enquiry about the relevant facts on July 8, 1968. The enquiry revealed that the optees had not been considered in both Divisions. Consequently, on August 6, 1968 the Director of Telegraphs passed an order cancelling the selection of the petitioner and others. He further directed that the aforesaid optees should also be considered for promotion to the post of Sub-Inspector. The order regarding cancellation of the selection was issued by the office of the Post Master General on August 20, 1968. 5. On September 19, 1968 there was a general strike in the Postal Department. The petitioner admittedly participated in the general strike. On July 5, 1969 Kamta Prasad and other respondents optees were selected as Sub-Inspectors. The petitioner and certain other persons who had participated in the strike were not selected. On July 7, 1969 the Divisional Engineer, Telegraphs Jullundur East approved the aforesaid selection. Pursuant to this approval, the petitioner was sent back to his substantive post of linesman. 6. Two arguments have been advanced on behalf of the petitioner; one, Kamta Prasad and other respondents optees were not eligible for appointment as Sub-Inspectors in Jullundur East; two, the petitioner had been reverted mala fide on account of his participation in the strike. 7. As regards the first argument, reliance is placed on the words "in the Division" in R. 464 of the Posts and Telegraphs Manual, Vol. IV. The main part of Rule 464 provides that vacancies in the grade of Sub-Inspectors should be filled from the grade of "linesmen in the Division". The argument is that the respondents optees were actually working in the Ferozepur Engineering Division at the time of the petitioners selection in May, 1967 and were accordingly not "linesmen in the Division". It appears to us that it is a too narrow interpretation of the phrase "in the Division". We think that the optees who had opted for Jullundur East in 1966 and who, for no fault of their own, were working in the Ferozepur Division at the relevant time, should be deemed to be "linesmen in the Division" for the purpose of Rule 464. Indeed, there was in force a direction of the appropriate authority to that effect on the relevant date. According to it, the optees should be repatriated to the Division of their choice as early as possible and whenever fresh vacancies occurred. It also provided that even though they were not working in the Division of their choice, they should be considered for promotion in the Division as and when vacancies occurred. As the respondents optees were not considered at all for the promotion to the post of Sub-Inspector in May, 1967, the selection of the petitioner and others was invalid. Accordingly it has been rightly cancelled. The petitioner can have no legitimate grievance. 8. Coming to the second argument, it may be pointed out at the outset that strike in the Posts and Telegraphs Services were banned by an order of the Central Government under S. 3 of the Essential Services Maintenance Ordinance, 1968. In spite of that order, the petitioner and others struck work on September 19, 1968. 9. As regards the effect of participation in the strike on promotional prospects in the strike on promotional prospects there were several orders by different authorities. It is not necessary to mention every one of them. Notice may be taken of two orders.On June 16, 1969, the Director General, Posts and Telegraphs, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to September 1968 had been found to be satisfactory. The petitioner seeks to rely on this order. But this order was ineffective on account of the Office Memorandum of the Ministry of Home Affairs, issued on October 19, 1968. The Office Memorandum provided that the adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation. All employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Accordingly, the petitioner cannot rely on the order of the Director General. The petitioner obviously became ineligible for promotion as Sub-Inspector on account of the Office Memorandum for a period of five years. So he could not be considered for promotion as Sub-Inspector in July, 1969, when the respondents optees and certain other persons were selected as Sub-Inspectors. 10. It is admitted by the Divisional Engineer Jullundur East that the petitioner was not considered for promotion as Sub-Inspector on account of the aforesaid directive of the Ministry of Home Affairs. The plea of the petitioner that he has been reverted mala fide on account of his participation in the strike is clearly untenable. There is no mala fide. The order cancelling his selection was passed one month before the strike. The Divisional Engineer was bound to follow the directive of the Ministry of Home Affairs and hold a fresh selection, according to it. | 0[ds]7. As regards the first argument, reliance is placed on the words "in the Division" in R. 464 of the Posts and Telegraphs Manual, Vol. IV. The main part of Rule 464 provides that vacancies in the grade of Sub-Inspectors should be filled from the grade of "linesmen in the Division". The argument is that the respondents optees were actually working in the Ferozepur Engineering Division at the time of the petitioners selection in May, 1967 and were accordingly not "linesmen in the Division". It appears to us that it is a too narrow interpretation of the phrase "in the Division". We think that the optees who had opted for Jullundur East in 1966 and who, for no fault of their own, were working in the Ferozepur Division at the relevant time, should be deemed to be "linesmen in the Division" for the purpose of Rule 464. Indeed, there was in force a direction of the appropriate authority to that effect on the relevant date. According to it, the optees should be repatriated to the Division of their choice as early as possible and whenever fresh vacancies occurred. It also provided that even though they were not working in the Division of their choice, they should be considered for promotion in the Division as and when vacancies occurred. As the respondents optees were not considered at all for the promotion to the post of Sub-Inspector in May, 1967, the selection of the petitioner and others was invalid. Accordingly it has been rightly cancelled. The petitioner can have no legitimate grievance8. Coming to the second argument, it may be pointed out at the outset that strike in the Posts and Telegraphs Services were banned by an order of the Central Government under S. 3 of the Essential Services Maintenance Ordinance, 1968. In spite of that order, the petitioner and others struck work on September 19, 19689. As regards the effect of participation in the strike on promotional prospects in the strike on promotional prospects there were several orders by different authorities. It is not necessary to mention every one of them. Notice may be taken of two orders.On June 16, 1969, the Director General, Posts and Telegraphs, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to September 1968 had been found to be satisfactory. The petitioner seeks to rely on this order. But this order was ineffective on account of the Office Memorandum of the Ministry of Home Affairs, issued on October 19, 1968The Office Memorandum provided that the adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation. All employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Accordingly, the petitioner cannot rely on the order of the Director General. The petitioner obviously became ineligible for promotion as Sub-Inspector on account of the Office Memorandum for a period of five years. So he could not be considered for promotion as Sub-Inspector in July, 1969, when the respondents optees and certain other persons were selected as Sub-Inspectors10. It is admitted by the Divisional Engineer Jullundur East that the petitioner was not considered for promotion as Sub-Inspector on account of the aforesaid directive of the Ministry of Home Affairs. The plea of the petitioner that he has been reverted mala fide on account of his participation in the strike is clearly untenable. There is no mala fide. The order cancelling his selection was passed one month before the strike. The Divisional Engineer was bound to follow the directive of the Ministry of Home Affairs and hold a fresh selection, according to it. | 0 | 1,361 | 716 | ### 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:
newly created Ferozpur Telegraph Engineering Division. They opted for Jullundur East. But they could not be posted in Jullundur East for want of vacancies. 4. The petitioner along with certain other linesmen was selection for the post of Sub-Inspector by the Divisional Engineer Telegraphs Jullundur East on 13-6-1967. He was appointed as Sub-Inspector with effect from June 16, 1967. A similar selection for the post of Sub-Inspector was, it appears, held in the Jullundur Telegraph Engineering Division. But Kamta Prasad and others were considered for promotion neither there nor in Jullundur East. The Circle Secretary. All India Telegraph Engineering Employees Union and Linesmen Staff and Class III Union, Jullundur Branch complained to the Post Master General, Punjab Circle, by letter, dated, May 28, 1968 that the Divisional Engineer Telegraph Jullundur East had not considered the optees for appointment as Sub-Inspectors. The Post Master General made an enquiry about the relevant facts on July 8, 1968. The enquiry revealed that the optees had not been considered in both Divisions. Consequently, on August 6, 1968 the Director of Telegraphs passed an order cancelling the selection of the petitioner and others. He further directed that the aforesaid optees should also be considered for promotion to the post of Sub-Inspector. The order regarding cancellation of the selection was issued by the office of the Post Master General on August 20, 1968. 5. On September 19, 1968 there was a general strike in the Postal Department. The petitioner admittedly participated in the general strike. On July 5, 1969 Kamta Prasad and other respondents optees were selected as Sub-Inspectors. The petitioner and certain other persons who had participated in the strike were not selected. On July 7, 1969 the Divisional Engineer, Telegraphs Jullundur East approved the aforesaid selection. Pursuant to this approval, the petitioner was sent back to his substantive post of linesman. 6. Two arguments have been advanced on behalf of the petitioner; one, Kamta Prasad and other respondents optees were not eligible for appointment as Sub-Inspectors in Jullundur East; two, the petitioner had been reverted mala fide on account of his participation in the strike. 7. As regards the first argument, reliance is placed on the words "in the Division" in R. 464 of the Posts and Telegraphs Manual, Vol. IV. The main part of Rule 464 provides that vacancies in the grade of Sub-Inspectors should be filled from the grade of "linesmen in the Division". The argument is that the respondents optees were actually working in the Ferozepur Engineering Division at the time of the petitioners selection in May, 1967 and were accordingly not "linesmen in the Division". It appears to us that it is a too narrow interpretation of the phrase "in the Division". We think that the optees who had opted for Jullundur East in 1966 and who, for no fault of their own, were working in the Ferozepur Division at the relevant time, should be deemed to be "linesmen in the Division" for the purpose of Rule 464. Indeed, there was in force a direction of the appropriate authority to that effect on the relevant date. According to it, the optees should be repatriated to the Division of their choice as early as possible and whenever fresh vacancies occurred. It also provided that even though they were not working in the Division of their choice, they should be considered for promotion in the Division as and when vacancies occurred. As the respondents optees were not considered at all for the promotion to the post of Sub-Inspector in May, 1967, the selection of the petitioner and others was invalid. Accordingly it has been rightly cancelled. The petitioner can have no legitimate grievance. 8. Coming to the second argument, it may be pointed out at the outset that strike in the Posts and Telegraphs Services were banned by an order of the Central Government under S. 3 of the Essential Services Maintenance Ordinance, 1968. In spite of that order, the petitioner and others struck work on September 19, 1968. 9. As regards the effect of participation in the strike on promotional prospects in the strike on promotional prospects there were several orders by different authorities. It is not necessary to mention every one of them. Notice may be taken of two orders.On June 16, 1969, the Director General, Posts and Telegraphs, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to September 1968 had been found to be satisfactory. The petitioner seeks to rely on this order. But this order was ineffective on account of the Office Memorandum of the Ministry of Home Affairs, issued on October 19, 1968. The Office Memorandum provided that the adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation. All employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Accordingly, the petitioner cannot rely on the order of the Director General. The petitioner obviously became ineligible for promotion as Sub-Inspector on account of the Office Memorandum for a period of five years. So he could not be considered for promotion as Sub-Inspector in July, 1969, when the respondents optees and certain other persons were selected as Sub-Inspectors. 10. It is admitted by the Divisional Engineer Jullundur East that the petitioner was not considered for promotion as Sub-Inspector on account of the aforesaid directive of the Ministry of Home Affairs. The plea of the petitioner that he has been reverted mala fide on account of his participation in the strike is clearly untenable. There is no mala fide. The order cancelling his selection was passed one month before the strike. The Divisional Engineer was bound to follow the directive of the Ministry of Home Affairs and hold a fresh selection, according to it.
### Response:
0
### Explanation:
7. As regards the first argument, reliance is placed on the words "in the Division" in R. 464 of the Posts and Telegraphs Manual, Vol. IV. The main part of Rule 464 provides that vacancies in the grade of Sub-Inspectors should be filled from the grade of "linesmen in the Division". The argument is that the respondents optees were actually working in the Ferozepur Engineering Division at the time of the petitioners selection in May, 1967 and were accordingly not "linesmen in the Division". It appears to us that it is a too narrow interpretation of the phrase "in the Division". We think that the optees who had opted for Jullundur East in 1966 and who, for no fault of their own, were working in the Ferozepur Division at the relevant time, should be deemed to be "linesmen in the Division" for the purpose of Rule 464. Indeed, there was in force a direction of the appropriate authority to that effect on the relevant date. According to it, the optees should be repatriated to the Division of their choice as early as possible and whenever fresh vacancies occurred. It also provided that even though they were not working in the Division of their choice, they should be considered for promotion in the Division as and when vacancies occurred. As the respondents optees were not considered at all for the promotion to the post of Sub-Inspector in May, 1967, the selection of the petitioner and others was invalid. Accordingly it has been rightly cancelled. The petitioner can have no legitimate grievance8. Coming to the second argument, it may be pointed out at the outset that strike in the Posts and Telegraphs Services were banned by an order of the Central Government under S. 3 of the Essential Services Maintenance Ordinance, 1968. In spite of that order, the petitioner and others struck work on September 19, 19689. As regards the effect of participation in the strike on promotional prospects in the strike on promotional prospects there were several orders by different authorities. It is not necessary to mention every one of them. Notice may be taken of two orders.On June 16, 1969, the Director General, Posts and Telegraphs, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to September 1968 had been found to be satisfactory. The petitioner seeks to rely on this order. But this order was ineffective on account of the Office Memorandum of the Ministry of Home Affairs, issued on October 19, 1968The Office Memorandum provided that the adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation. All employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Accordingly, the petitioner cannot rely on the order of the Director General. The petitioner obviously became ineligible for promotion as Sub-Inspector on account of the Office Memorandum for a period of five years. So he could not be considered for promotion as Sub-Inspector in July, 1969, when the respondents optees and certain other persons were selected as Sub-Inspectors10. It is admitted by the Divisional Engineer Jullundur East that the petitioner was not considered for promotion as Sub-Inspector on account of the aforesaid directive of the Ministry of Home Affairs. The plea of the petitioner that he has been reverted mala fide on account of his participation in the strike is clearly untenable. There is no mala fide. The order cancelling his selection was passed one month before the strike. The Divisional Engineer was bound to follow the directive of the Ministry of Home Affairs and hold a fresh selection, according to it.
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Monohar Das Mohanta Vs. Charu Chandra Pal & Others | observance by the settlement authorities provides that if property is found in the possession of a person who is not actually paying rent for it, it should be described as "Niskar", and if no sanad or title deed is produced by the occupant showing a rent-free title, the words "Bhog Dakhal Sutre" (by virtue of enjoyment and possession) should be added. In the written statement it was stated that "as the defendants could not produce any revenue free grant, they (Settlement Officers) recorded Niskar Raiyati right in a general way". Reading Rule 37 along with the written statement it is clear that the entry in the record of rights in 1931 was made in compliance with that Rule, and that what it imports is not that there was a rent-free grant, but that the person in possession was not actually paying rent. Whatever weight might attach to the word "Niskar" in a record of rights in other context, where the question is whether a presumption of a lost pre-settlement Lakheraj grant could be made, the inference to be drawn from that word cannot outweigh the effect of the non-exclusion of the lands from the Mal or the regularly assessed estate. We are therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights.There are also other difficulties in the way of presuming a lost grant in favour of the predecessors of the defendants. The suit properties formed part of Mauza Nala within the zamindari of Burdwan, and if a grant had been made in favour of the predecessors of the defendants, it must have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. But the defendants have in their written statements denied the title of both the Maharaja and the Asthal, and having failed in that plea, cannot fall back on a presumption of lost grant by the very persons, whose title they have repudiated.6. This does not exhaust all the difficulties of the defendants. According to the District Judge, the suit properties had been settled on the Rajgunj Asthal more than 200 years ago. Therefore, the grant to be presumed must have been made by the Mahant of Asthal in favour of the predecessors of the defendants. But before raising such a presumption, it must be established that the grant was one which could have legally been made by him. It is well settled that it is beyond the powers of a manager of a manager of a religious institution to grant perpetual lease binding the institution for all times to a fixed rent, unless there is a compelling necessity or benefit therefor. Vide Palaniappa Chetty v. Sreenath Devasikamony ([1917] L.R. 44 I.A. 147). And what is pleaded in the present case is not even so much as a permanent lease, because there is neither premium paid nor rent reserved but a Lakheraj grant unsupported by any consideration. That would clearly be beyond the powers of a Mahant, and no presumption of a lost grant could be made in respect thereto. In Barker v. Richardson ([1821] 4 B & Ald. 579), an easement was claimed both on the ground of prescription and presumption of a lost grant by a rector. In negativing this claim, Abbot, C.J. observed that a grant could not be presumed, because the rector had no right to bind his successor by it, and it would therefore be invalid. In The Rochdale Canal Company v. Radcliffe ([1852] 18 Q.B. 287) where the Court was asked to presume that a company had made a grant of its surplus waters for use by the Duke of Bridge water, Lord Campbell, C.J. observed that "if they had made a grant of the water in the terms of this plea, such a grant would have been ultra vires and bad", and on that ground, he refused to raise the presumption.We are accordingly of opinion that on the facts found, no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in their possession.7. Learned counsel for the respondents also raised the plea of limitation. The Courts below have held that the suits were within time under article 131 of the Limitation Act, as the final settlement of records was published on 16-6-1931, and the present suits were filed within 12 years thereof for establishing the right of the institution to assessment of rent. It was observed by the learned Judges of the High Court who heard the application for leave to appeal to this Court that it was not suggested before them that the decision on the question of limitation was erroneous. The contention that is now pressed before us is that in the view that there was no rent-free grant in favour of the predecessors of the defendants they were all trespassers, and that the title of the Asthal had become extinguished by adverse possession for long over the statutory period. But the question of adverse possession was not made the subject of an issue, and there is no discussion of it in the judgments of the Courts below. We have already held that the documents relied on by the defendants as containing assertions that they held under a Lakheraj grant are not shown to relate to the suit lands. We have also held that there is no proof that the defendants claimed to hold under a rent-free grant to the knowledge of the plaintiff prior to 1931, and that what all has been established by them is non-payment of rent for a considerable but unascertained period of time. That, in itself, is not sufficient to make their possession adverse. It was only in 1931 that the defendants could be said clearly to have asserted a hostile title, and the suits are within time from that date. There is no substance in this plea, which is accordingly rejected. | 1[ds]The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went againstwhen it is shown that lands in an estate are assessed, it must follow that they could not have been held on the date of the permanent settlement as Lakheraj. It would be inconsistent with the scheme of the settlement and section 36 of Regulation No. 8 of 1793 to hold that the assessed or Mal lands in an estate could have been held on an anterior Lakheraj grant. It was for this reason that the defendants pleaded that the suit lands were not comprised in the Mal lands of the zamindari of Burdwan. But that plea has been negatived, and it has been found that they are part of the Mal lands within the zamindari assessed to revenue, and in view of that finding there is no scope for the presumption of a lost grant.Learned counsel for the respondents relied strongly on the record of rights made in 1931 with reference to the suit lands as supporting his contention. The entry in question describes the lands as "Bhog Dakhal Sutre Niskar", and has been translated as "without rent by virtue of possession andare therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights.There are also other difficulties in the way of presuming a lost grant in favour of the predecessors of the defendants. The suit properties formed part of Mauza Nala within the zamindari of Burdwan, and if a grant had been made in favour of the predecessors of the defendants, it must have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. But the defendants have in their written statements denied the title of both the Maharaja and the Asthal, and having failed in that plea, cannot fall back on a presumption of lost grant by the very persons, whose title they haveare accordingly of opinion that on the facts found, no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in theirhave also held that there is no proof that the defendants claimed to hold under a rent-free grant to the knowledge of the plaintiff prior to 1931, and that what all has been established by them is non-payment of rent for a considerable but unascertained period of time. That, in itself, is not sufficient to make their possession adverse. It was only in 1931 that the defendants could be said clearly to have asserted a hostile title, and the suits are within time from that date. There is no substance in this plea, which is accordingly rejected. | 1 | 3,185 | 632 | ### 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:
observance by the settlement authorities provides that if property is found in the possession of a person who is not actually paying rent for it, it should be described as "Niskar", and if no sanad or title deed is produced by the occupant showing a rent-free title, the words "Bhog Dakhal Sutre" (by virtue of enjoyment and possession) should be added. In the written statement it was stated that "as the defendants could not produce any revenue free grant, they (Settlement Officers) recorded Niskar Raiyati right in a general way". Reading Rule 37 along with the written statement it is clear that the entry in the record of rights in 1931 was made in compliance with that Rule, and that what it imports is not that there was a rent-free grant, but that the person in possession was not actually paying rent. Whatever weight might attach to the word "Niskar" in a record of rights in other context, where the question is whether a presumption of a lost pre-settlement Lakheraj grant could be made, the inference to be drawn from that word cannot outweigh the effect of the non-exclusion of the lands from the Mal or the regularly assessed estate. We are therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights.There are also other difficulties in the way of presuming a lost grant in favour of the predecessors of the defendants. The suit properties formed part of Mauza Nala within the zamindari of Burdwan, and if a grant had been made in favour of the predecessors of the defendants, it must have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. But the defendants have in their written statements denied the title of both the Maharaja and the Asthal, and having failed in that plea, cannot fall back on a presumption of lost grant by the very persons, whose title they have repudiated.6. This does not exhaust all the difficulties of the defendants. According to the District Judge, the suit properties had been settled on the Rajgunj Asthal more than 200 years ago. Therefore, the grant to be presumed must have been made by the Mahant of Asthal in favour of the predecessors of the defendants. But before raising such a presumption, it must be established that the grant was one which could have legally been made by him. It is well settled that it is beyond the powers of a manager of a manager of a religious institution to grant perpetual lease binding the institution for all times to a fixed rent, unless there is a compelling necessity or benefit therefor. Vide Palaniappa Chetty v. Sreenath Devasikamony ([1917] L.R. 44 I.A. 147). And what is pleaded in the present case is not even so much as a permanent lease, because there is neither premium paid nor rent reserved but a Lakheraj grant unsupported by any consideration. That would clearly be beyond the powers of a Mahant, and no presumption of a lost grant could be made in respect thereto. In Barker v. Richardson ([1821] 4 B & Ald. 579), an easement was claimed both on the ground of prescription and presumption of a lost grant by a rector. In negativing this claim, Abbot, C.J. observed that a grant could not be presumed, because the rector had no right to bind his successor by it, and it would therefore be invalid. In The Rochdale Canal Company v. Radcliffe ([1852] 18 Q.B. 287) where the Court was asked to presume that a company had made a grant of its surplus waters for use by the Duke of Bridge water, Lord Campbell, C.J. observed that "if they had made a grant of the water in the terms of this plea, such a grant would have been ultra vires and bad", and on that ground, he refused to raise the presumption.We are accordingly of opinion that on the facts found, no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in their possession.7. Learned counsel for the respondents also raised the plea of limitation. The Courts below have held that the suits were within time under article 131 of the Limitation Act, as the final settlement of records was published on 16-6-1931, and the present suits were filed within 12 years thereof for establishing the right of the institution to assessment of rent. It was observed by the learned Judges of the High Court who heard the application for leave to appeal to this Court that it was not suggested before them that the decision on the question of limitation was erroneous. The contention that is now pressed before us is that in the view that there was no rent-free grant in favour of the predecessors of the defendants they were all trespassers, and that the title of the Asthal had become extinguished by adverse possession for long over the statutory period. But the question of adverse possession was not made the subject of an issue, and there is no discussion of it in the judgments of the Courts below. We have already held that the documents relied on by the defendants as containing assertions that they held under a Lakheraj grant are not shown to relate to the suit lands. We have also held that there is no proof that the defendants claimed to hold under a rent-free grant to the knowledge of the plaintiff prior to 1931, and that what all has been established by them is non-payment of rent for a considerable but unascertained period of time. That, in itself, is not sufficient to make their possession adverse. It was only in 1931 that the defendants could be said clearly to have asserted a hostile title, and the suits are within time from that date. There is no substance in this plea, which is accordingly rejected.
### Response:
1
### Explanation:
The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went againstwhen it is shown that lands in an estate are assessed, it must follow that they could not have been held on the date of the permanent settlement as Lakheraj. It would be inconsistent with the scheme of the settlement and section 36 of Regulation No. 8 of 1793 to hold that the assessed or Mal lands in an estate could have been held on an anterior Lakheraj grant. It was for this reason that the defendants pleaded that the suit lands were not comprised in the Mal lands of the zamindari of Burdwan. But that plea has been negatived, and it has been found that they are part of the Mal lands within the zamindari assessed to revenue, and in view of that finding there is no scope for the presumption of a lost grant.Learned counsel for the respondents relied strongly on the record of rights made in 1931 with reference to the suit lands as supporting his contention. The entry in question describes the lands as "Bhog Dakhal Sutre Niskar", and has been translated as "without rent by virtue of possession andare therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights.There are also other difficulties in the way of presuming a lost grant in favour of the predecessors of the defendants. The suit properties formed part of Mauza Nala within the zamindari of Burdwan, and if a grant had been made in favour of the predecessors of the defendants, it must have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. But the defendants have in their written statements denied the title of both the Maharaja and the Asthal, and having failed in that plea, cannot fall back on a presumption of lost grant by the very persons, whose title they haveare accordingly of opinion that on the facts found, no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in theirhave also held that there is no proof that the defendants claimed to hold under a rent-free grant to the knowledge of the plaintiff prior to 1931, and that what all has been established by them is non-payment of rent for a considerable but unascertained period of time. That, in itself, is not sufficient to make their possession adverse. It was only in 1931 that the defendants could be said clearly to have asserted a hostile title, and the suits are within time from that date. There is no substance in this plea, which is accordingly rejected.
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M/S Alcon Electronics Pvt. Ltd Vs. Celem S.A. Of Fos 34320 Roujan, France | the present case, since the costs imposed exceed the bar imposed by Section 35A, therefore, the order of the English Court is not executable in the present case.30. This argument lacks merit and deserves to be rejected. A bare perusal of Section 35A shows that bar operates on the Indian Courts with regard to imposition of costs in respect of false or vexatious claims or defences. The bar is not attracted in the present case as the Court that has ordered the costs is the High Court of Justice in England which is not governed by the provisions of the CPC and that the respondent merely approached the Indian Courts for the satisfaction of a foreign decree. Moreover, the nature of compensatory costs prescribed in Section 35A of the CPC are different from `costs dealt with in Section 35 of the CPC as the former are limited to the claims of defences of a party which are frivolous or vexatious. It is settled that before awarding costs under Section 35A of the CPC, the Court should satisfy itself that the claim was false or vexatious to the knowledge of the party who put it forward and that the interests of justice require the award of such compensatory costs. In the present case, no claim has been advanced by the appellant that the claim filed by the respondents is false or vexatious, therefore, the bar in Section 35A is not applicable. Accordingly the issue is answered.31. In re Issue No. 5 - It is the case of the appellant that the claim for interest on costs is not recognized in the Indian law. It is to be noted that matters of procedure are to be governed by the lex fori, whereas the matters of the substance are governed by lex causae. In this case, the question whether the interest on sum of decree of costs to be executed in India is a matter of substance as the interest on decree is a substantive right of the decree holder and does not concern itself with the procedural law of the forum.32. The appellant relied upon Section 35 of the CPC which enables Courts in India to impose litigation costs at the discretion of the Court. However, there is no provision under the CPC or the Interest Act, 1978 which permits imposition of interest on litigation costs. Further tried to impress upon that the amended Section 35(3) of the CPC permitted a Civil Court to grant interest on costs. The unamended Section 35(3) stated as follows:The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.This Provision was consciously omitted in 1956 (pursuant to Act 66 of 1956). In view of the deletion of Section 35(3) of the CPC, it is argued that grant of interest on costs is no longer recognized under India law.33. In this context, it is educative to read the following comments made in the Debate on the Bill against the deletion of Section 35 (3), by Honble Member of Lok Sabha Shri Tek Chand;"..In this connection, a reference has been made to section 35, sub-section (3), which according to clause 3 of the Bill, is to be omitted. Not that I have usurious propensities, but I do not like this provision. It is true that there should not be any profiteering by the people; I concede that, but there are instances when the costs amount to five figures or more, and there is no reason why, when an unsuccessful party is subjecting the successful party not only to a long dilatory and unending dispute, but also to frivolous and vexatious litigation whereby he is out of pocket to the tune of several thousands, the law or the legislature should be so solicitous that such person should not pay interest, if he does not propose to pay or if he intends to delay the payment of the costs. One unfortunate and unhappy feature of administration of civil law in our land, is apart from delays and objections of frivolous and vexatious nature, justice is made available, if at all, at a very high and exorbitant price".34. The Honble Member of Lok Sabha thus articulated that omitting sub-section (3) would encourage delay in realization of decree costs. A reference to the Report of Law Commission and the views expressed in Debate on the Bill, as extracted in the Law Commission Report (supra), would indicate that the consequences of deletion of sub-section (3) of Section 35 were very much considered by the Parliament. When the idea of deletion is not to encourage interest on costs as a source of income to the litigants, the Parliament did not choose positively to prohibit interest on costs by inserting suitable clause in Section 35.35. It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. The right to 8% interest as per the Judgments Act, 1838 of UK can be recognized and as well as implemented in India.36. Therefore, we are of the considered opinion that the Execution Petition filed by the Respondents for execution of the order dated 19th October, 2006 passed by the English Court is maintainable under the relevant provisions. | 0[ds]A judgment can be considered as a judgment passed on merits when the Court deciding the case gives opportunity to the parties to the case to put forth their case and after considering the rival submissions, gives its decision in the form of an order or judgment, it is certainly an order on merits of the case in the context of interpretation of Section 13(c) of the CPC.16. Applying the same analogy to the facts of the case on hand, we have no hesitation to hold that the order passed by the English Court is an order on merits. The appellant who has submitted itself to the jurisdiction of the Court and on its own requested the Court to assess the costs summarily. While passing a reasoned order by dismissing the application filed by the appellant, English Court granted the costs against the appellant. Had it been the case where appellants application was allowed and costs were awarded to it, it would have as well filed a petition for the execution of the order. Be that as it is, the appellant did not prefer any appeal and indeed sought time to pay the costs. The appellant, therefore, cannot be permitted to object the execution. It cannot be permitted to blow hot and cold at the same time. In our opinion, it is a pure abuse of process of law and the Courts should be very cautious in entertaining such petitions.The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of the CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 of the CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected. Accordingly, Issue No. 1 is answered.As per Section 2(2) of the CPC, "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 of CPC but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.Then a "foreign judgment" is defined under Section 2(6) as judgment of a foreign Court. "Judgment" as per Section 2(9) of C.P.C. means the statement given by the Judge on the grounds of a decree or order. Order is defined under Section 2(14) of CPC as a formal expression of any decision of the Civil Court which is not a `decree. Then Explanation 2 to Section 44A (3) says "decree" with reference to a superior Court means any `decree or `judgment. As per the plain reading of the definition `Judgment means the statement given by the Judge on the grounds of decree or order and order is a formal expression of a Court. Thus "decree" includes judgment and "judgment" includes "order". On conjoint reading of `decree, `judgment and `order from any angle, the order passed by the English Court falls within the definition of `Order and therefore, it is a judgment and thus becomes a "decree" as per Explanation to Section 44A(3) of CPC. In this case, the Court at England, after following the principles of natural justice, by recording reasons and very importantly basing on the application of the appellant itself, has conclusively decided the issue with regard to jurisdiction and passed the order coupled with costs. Hence in our considered opinion, the order passed by the Foreign Court is conclusive in that respect and on merits. Hence executable as a decree and accordingly the issue is answered.It is important to note that a penalty in this sense normally means a sum payable to the State, not to a private claimant, so the costs imposed on the basis of the indemnity is not a penalty or tax. Therefore, the Explanation II to Section 44A does not refer to the costs as contemplated under Section 35 of the CPC. The costs having been quantified have assumed the character of a money decree for costs and cannot be equated, either with a fine or penalty which is imposed on a party by the Court or taxes claimed and are taxes payable to a local authority, Government, or other charges of a like nature.This argument lacks merit and deserves to be rejected. A bare perusal of Section 35A shows that bar operates on the Indian Courts with regard to imposition of costs in respect of false or vexatious claims or defences. The bar is not attracted in the present case as the Court that has ordered the costs is the High Court of Justice in England which is not governed by the provisions of the CPC and that the respondent merely approached the Indian Courts for the satisfaction of a foreign decree. Moreover, the nature of compensatory costs prescribed in Section 35A of the CPC are different from `costs dealt with in Section 35 of the CPC as the former are limited to the claims of defences of a party which are frivolous or vexatious. It is settled that before awarding costs under Section 35A of the CPC, the Court should satisfy itself that the claim was false or vexatious to the knowledge of the party who put it forward and that the interests of justice require the award of such compensatory costs. In the present case, no claim has been advanced by the appellant that the claim filed by the respondents is false or vexatious, therefore, the bar in Section 35A is not applicable. Accordingly the issue is answered.It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. The right to 8% interest as per the Judgments Act, 1838 of UK can be recognized and as well as implemented in India.36. Therefore, we are of the considered opinion that the Execution Petition filed by the Respondents for execution of the order dated 19th October, 2006 passed by the English Court is maintainable under the relevant provisions. | 0 | 5,715 | 1,344 | ### Instruction:
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the present case, since the costs imposed exceed the bar imposed by Section 35A, therefore, the order of the English Court is not executable in the present case.30. This argument lacks merit and deserves to be rejected. A bare perusal of Section 35A shows that bar operates on the Indian Courts with regard to imposition of costs in respect of false or vexatious claims or defences. The bar is not attracted in the present case as the Court that has ordered the costs is the High Court of Justice in England which is not governed by the provisions of the CPC and that the respondent merely approached the Indian Courts for the satisfaction of a foreign decree. Moreover, the nature of compensatory costs prescribed in Section 35A of the CPC are different from `costs dealt with in Section 35 of the CPC as the former are limited to the claims of defences of a party which are frivolous or vexatious. It is settled that before awarding costs under Section 35A of the CPC, the Court should satisfy itself that the claim was false or vexatious to the knowledge of the party who put it forward and that the interests of justice require the award of such compensatory costs. In the present case, no claim has been advanced by the appellant that the claim filed by the respondents is false or vexatious, therefore, the bar in Section 35A is not applicable. Accordingly the issue is answered.31. In re Issue No. 5 - It is the case of the appellant that the claim for interest on costs is not recognized in the Indian law. It is to be noted that matters of procedure are to be governed by the lex fori, whereas the matters of the substance are governed by lex causae. In this case, the question whether the interest on sum of decree of costs to be executed in India is a matter of substance as the interest on decree is a substantive right of the decree holder and does not concern itself with the procedural law of the forum.32. The appellant relied upon Section 35 of the CPC which enables Courts in India to impose litigation costs at the discretion of the Court. However, there is no provision under the CPC or the Interest Act, 1978 which permits imposition of interest on litigation costs. Further tried to impress upon that the amended Section 35(3) of the CPC permitted a Civil Court to grant interest on costs. The unamended Section 35(3) stated as follows:The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.This Provision was consciously omitted in 1956 (pursuant to Act 66 of 1956). In view of the deletion of Section 35(3) of the CPC, it is argued that grant of interest on costs is no longer recognized under India law.33. In this context, it is educative to read the following comments made in the Debate on the Bill against the deletion of Section 35 (3), by Honble Member of Lok Sabha Shri Tek Chand;"..In this connection, a reference has been made to section 35, sub-section (3), which according to clause 3 of the Bill, is to be omitted. Not that I have usurious propensities, but I do not like this provision. It is true that there should not be any profiteering by the people; I concede that, but there are instances when the costs amount to five figures or more, and there is no reason why, when an unsuccessful party is subjecting the successful party not only to a long dilatory and unending dispute, but also to frivolous and vexatious litigation whereby he is out of pocket to the tune of several thousands, the law or the legislature should be so solicitous that such person should not pay interest, if he does not propose to pay or if he intends to delay the payment of the costs. One unfortunate and unhappy feature of administration of civil law in our land, is apart from delays and objections of frivolous and vexatious nature, justice is made available, if at all, at a very high and exorbitant price".34. The Honble Member of Lok Sabha thus articulated that omitting sub-section (3) would encourage delay in realization of decree costs. A reference to the Report of Law Commission and the views expressed in Debate on the Bill, as extracted in the Law Commission Report (supra), would indicate that the consequences of deletion of sub-section (3) of Section 35 were very much considered by the Parliament. When the idea of deletion is not to encourage interest on costs as a source of income to the litigants, the Parliament did not choose positively to prohibit interest on costs by inserting suitable clause in Section 35.35. It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. The right to 8% interest as per the Judgments Act, 1838 of UK can be recognized and as well as implemented in India.36. Therefore, we are of the considered opinion that the Execution Petition filed by the Respondents for execution of the order dated 19th October, 2006 passed by the English Court is maintainable under the relevant provisions.
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execution. It cannot be permitted to blow hot and cold at the same time. In our opinion, it is a pure abuse of process of law and the Courts should be very cautious in entertaining such petitions.The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of the CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 of the CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected. Accordingly, Issue No. 1 is answered.As per Section 2(2) of the CPC, "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 of CPC but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.Then a "foreign judgment" is defined under Section 2(6) as judgment of a foreign Court. "Judgment" as per Section 2(9) of C.P.C. means the statement given by the Judge on the grounds of a decree or order. Order is defined under Section 2(14) of CPC as a formal expression of any decision of the Civil Court which is not a `decree. Then Explanation 2 to Section 44A (3) says "decree" with reference to a superior Court means any `decree or `judgment. As per the plain reading of the definition `Judgment means the statement given by the Judge on the grounds of decree or order and order is a formal expression of a Court. Thus "decree" includes judgment and "judgment" includes "order". On conjoint reading of `decree, `judgment and `order from any angle, the order passed by the English Court falls within the definition of `Order and therefore, it is a judgment and thus becomes a "decree" as per Explanation to Section 44A(3) of CPC. In this case, the Court at England, after following the principles of natural justice, by recording reasons and very importantly basing on the application of the appellant itself, has conclusively decided the issue with regard to jurisdiction and passed the order coupled with costs. Hence in our considered opinion, the order passed by the Foreign Court is conclusive in that respect and on merits. Hence executable as a decree and accordingly the issue is answered.It is important to note that a penalty in this sense normally means a sum payable to the State, not to a private claimant, so the costs imposed on the basis of the indemnity is not a penalty or tax. Therefore, the Explanation II to Section 44A does not refer to the costs as contemplated under Section 35 of the CPC. The costs having been quantified have assumed the character of a money decree for costs and cannot be equated, either with a fine or penalty which is imposed on a party by the Court or taxes claimed and are taxes payable to a local authority, Government, or other charges of a like nature.This argument lacks merit and deserves to be rejected. A bare perusal of Section 35A shows that bar operates on the Indian Courts with regard to imposition of costs in respect of false or vexatious claims or defences. The bar is not attracted in the present case as the Court that has ordered the costs is the High Court of Justice in England which is not governed by the provisions of the CPC and that the respondent merely approached the Indian Courts for the satisfaction of a foreign decree. Moreover, the nature of compensatory costs prescribed in Section 35A of the CPC are different from `costs dealt with in Section 35 of the CPC as the former are limited to the claims of defences of a party which are frivolous or vexatious. It is settled that before awarding costs under Section 35A of the CPC, the Court should satisfy itself that the claim was false or vexatious to the knowledge of the party who put it forward and that the interests of justice require the award of such compensatory costs. In the present case, no claim has been advanced by the appellant that the claim filed by the respondents is false or vexatious, therefore, the bar in Section 35A is not applicable. Accordingly the issue is answered.It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. The right to 8% interest as per the Judgments Act, 1838 of UK can be recognized and as well as implemented in India.36. Therefore, we are of the considered opinion that the Execution Petition filed by the Respondents for execution of the order dated 19th October, 2006 passed by the English Court is maintainable under the relevant provisions.
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Pune Municipal Corporation & Another Vs. Motibagh Co-Operative Housing Society Limited & Others | a notice in the Official Gazette and also in not less than two local newspapers inviting objections and suggestions from any person in respect of the proposed modifications within a period of one month, from the date of such notice.][Provided also that, if the Government does not publish its decision by notification in the Official Gazette, regarding sanctioning the draft Development plan submitted to it, for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft Development plan to the Planning Authority, or as the case may be, the said officer for modifying the plan as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan, within the period under this section, such draft Development plan shall be deemed to have been sanctioned as submitted to the Government under Section 30, on the date immediately following the date of expiry of the period under this section:Provided also that, where any modification submitted by the Planning Authority or, as the case may be, the said Officer, under Section 30 is of substantial nature with respect to the draft Development plan published under section 26, such modification shall not be deemed to have been sanctioned and the Government shall publish a notice regarding such modifications of substantial nature and the provisions relating to publication of the notice in the Official Gazette and two local newspapers for obtaining suggestions and objections as stipulated in the second proviso, shall apply.](2) The State Government may appoint an officer of rank not below that of a [Group A officer] and direct him to hear any such person in respect of such objections and suggestions and submit his report thereon to the State Government [within one year from the date of publication of notice under second proviso to sub-section (1)](3) The State Government shall before according sanction to the draft Development plan take into consideration such objections and suggestions and the report of the officer.[Provided that, the time-limits as provided in sub-sections (1) and (2) shall not apply for according sanction to the modifications published under sub-section (1):Provided further that, the Government shall take final decision regarding such modifications within one year from the date of receipt of the report from the officer appointed under sub-section (2).](4) The State Government shall fix in the notification under sub-section (1) a date not earlier than one month from its publication on which the final Development plan shall come into operation.[(4A) The State Government may, by notification in the Official Gazette, delegate all the powers and functions under this section to the Director of Town Planning in such cases and subject to such conditions, if any, as may be specified in such notification.](5) If a Development plan contains any proposal for the designation of any land for a purpose specified in clauses (b) and (c) of section 22, and if such land does not vest in the Planning Authority, the State Government shall not include that in the Development Plan, unless it is satisfied that the Planning Authority will be able to acquire such land by private agreement or compulsory acquisition not later than ten years from the date on which the Development plan comes into operation.(6) A Development plan which has come into operation shall be called the "final Development plan"and shall, subject to the provisions of this Act, be binding on the Planning Authority."14. A reading of Section 31 of the MRTP Act clearly reveals that the Government was required to invite objections only in case the change in the public purpose is a substantial one and not otherwise. The State Government while sanctioning the Development Plan reserved the suit lands for Bus Depot instead of Parking. In our considered view, the change of public purpose from Parking to Bus Depot was not a substantial change and therefore there was no need to invite fresh objections / suggestions as directed by the High Court.15. Once declaration under Section 6 had been issued for the acquisition of the land for Bus Depot, it was supposed to be taken to the logical conclusion. The High Court has also held in "Bombay Environmental Action Group v. The State of Maharashtra", 1990 M.L.J. (Supra) that only in case of substantial change in the nature of public purpose, fresh objections/suggestions were required to be invited and not otherwise. As the change of public purpose in the final Sanctioned Plan made from Parking to Bus Depot was not a substantial change, it was not incumbent upon the appellants to invite fresh objections.16. As to the submission raised by learned senior counsel for the respondent regarding framing of the new scheme, since the land stands reserved for bus depot under New Scheme also that further justify our conclusion that land was required to be notified for the public purpose of Bus Depot, the, High Court erred in law in holding otherwise. Some more options have been given to the Planning Authority and the appropriate authority under New Scheme would also not come to rescue of respondents as the New Scheme is not applicable to the respondents. As the new notified Scheme cannot be said to be applicable to the acquisition which has been initiated in 1987.17. It was further submitted by learned Senior counsel that since there was restraint Order on the passing of the award as such land has not so far vested absolutely in Corporation and the option under the new scheme can be exercised. We are of the considered view that since order of the High court is illegal and provisions of new scheme are not applicable and due to interim stay, award could not be passed would not come to the rescue of the respondent to avail the benefit of the new scheme. We unhesitatingly rejects the submissions to avail benefits under New Scheme raised by the respondents to reopen the issue. | 1[ds]12. After hearing learned counsel for the parties, we are of the considered opinion that the order passed by the High Court cannot be allowed to sustain. Later on Section 22A in the MRTP Act was inserted by Maharashtra Act No.10 of 2011 dated 05.04.2011 so as to provide what are modifications of "substantial nature". Section 22 cannot be said to be applicable.A reading of Section 31 of the MRTP Act clearly reveals that the Government was required to invite objections only in case the change in the public purpose is a substantial one and not otherwise. The State Government while sanctioning the Development Plan reserved the suit lands for Bus Depot instead of Parking. In our considered view, the change of public purpose from Parking to Bus Depot was not a substantial change and therefore there was no need to invite fresh objections / suggestions as directed by the High Court.15. Once declaration under Section 6 had been issued for the acquisition of the land for Bus Depot, it was supposed to be taken to the logical conclusion. The High Court has also held in "Bombay Environmental Action Group v. The State of Maharashtra", 1990 M.L.J. (Supra) that only in case of substantial change in the nature of public purpose, fresh objections/suggestions were required to be invited and not otherwise. As the change of public purpose in the final Sanctioned Plan made from Parking to Bus Depot was not a substantial change, it was not incumbent upon the appellants to invite fresh objections.16. As to the submission raised by learned senior counsel for the respondent regarding framing of the new scheme, since the land stands reserved for bus depot under New Scheme also that further justify our conclusion that land was required to be notified for the public purpose of Bus Depot, the, High Court erred in law in holding otherwise. Some more options have been given to the Planning Authority and the appropriate authority under New Scheme would also not come to rescue of respondents as the New Scheme is not applicable to the respondents. As the new notified Scheme cannot be said to be applicable to the acquisition which has been initiated inare of the considered view that since order of the High court is illegal and provisions of new scheme are not applicable and due to interim stay, award could not be passed would not come to the rescue of the respondent to avail the benefit of the new scheme. We unhesitatingly rejects the submissions to avail benefits under New Scheme raised by the respondents to reopen the issue. | 1 | 2,687 | 470 | ### 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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a notice in the Official Gazette and also in not less than two local newspapers inviting objections and suggestions from any person in respect of the proposed modifications within a period of one month, from the date of such notice.][Provided also that, if the Government does not publish its decision by notification in the Official Gazette, regarding sanctioning the draft Development plan submitted to it, for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft Development plan to the Planning Authority, or as the case may be, the said officer for modifying the plan as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan, within the period under this section, such draft Development plan shall be deemed to have been sanctioned as submitted to the Government under Section 30, on the date immediately following the date of expiry of the period under this section:Provided also that, where any modification submitted by the Planning Authority or, as the case may be, the said Officer, under Section 30 is of substantial nature with respect to the draft Development plan published under section 26, such modification shall not be deemed to have been sanctioned and the Government shall publish a notice regarding such modifications of substantial nature and the provisions relating to publication of the notice in the Official Gazette and two local newspapers for obtaining suggestions and objections as stipulated in the second proviso, shall apply.](2) The State Government may appoint an officer of rank not below that of a [Group A officer] and direct him to hear any such person in respect of such objections and suggestions and submit his report thereon to the State Government [within one year from the date of publication of notice under second proviso to sub-section (1)](3) The State Government shall before according sanction to the draft Development plan take into consideration such objections and suggestions and the report of the officer.[Provided that, the time-limits as provided in sub-sections (1) and (2) shall not apply for according sanction to the modifications published under sub-section (1):Provided further that, the Government shall take final decision regarding such modifications within one year from the date of receipt of the report from the officer appointed under sub-section (2).](4) The State Government shall fix in the notification under sub-section (1) a date not earlier than one month from its publication on which the final Development plan shall come into operation.[(4A) The State Government may, by notification in the Official Gazette, delegate all the powers and functions under this section to the Director of Town Planning in such cases and subject to such conditions, if any, as may be specified in such notification.](5) If a Development plan contains any proposal for the designation of any land for a purpose specified in clauses (b) and (c) of section 22, and if such land does not vest in the Planning Authority, the State Government shall not include that in the Development Plan, unless it is satisfied that the Planning Authority will be able to acquire such land by private agreement or compulsory acquisition not later than ten years from the date on which the Development plan comes into operation.(6) A Development plan which has come into operation shall be called the "final Development plan"and shall, subject to the provisions of this Act, be binding on the Planning Authority."14. A reading of Section 31 of the MRTP Act clearly reveals that the Government was required to invite objections only in case the change in the public purpose is a substantial one and not otherwise. The State Government while sanctioning the Development Plan reserved the suit lands for Bus Depot instead of Parking. In our considered view, the change of public purpose from Parking to Bus Depot was not a substantial change and therefore there was no need to invite fresh objections / suggestions as directed by the High Court.15. Once declaration under Section 6 had been issued for the acquisition of the land for Bus Depot, it was supposed to be taken to the logical conclusion. The High Court has also held in "Bombay Environmental Action Group v. The State of Maharashtra", 1990 M.L.J. (Supra) that only in case of substantial change in the nature of public purpose, fresh objections/suggestions were required to be invited and not otherwise. As the change of public purpose in the final Sanctioned Plan made from Parking to Bus Depot was not a substantial change, it was not incumbent upon the appellants to invite fresh objections.16. As to the submission raised by learned senior counsel for the respondent regarding framing of the new scheme, since the land stands reserved for bus depot under New Scheme also that further justify our conclusion that land was required to be notified for the public purpose of Bus Depot, the, High Court erred in law in holding otherwise. Some more options have been given to the Planning Authority and the appropriate authority under New Scheme would also not come to rescue of respondents as the New Scheme is not applicable to the respondents. As the new notified Scheme cannot be said to be applicable to the acquisition which has been initiated in 1987.17. It was further submitted by learned Senior counsel that since there was restraint Order on the passing of the award as such land has not so far vested absolutely in Corporation and the option under the new scheme can be exercised. We are of the considered view that since order of the High court is illegal and provisions of new scheme are not applicable and due to interim stay, award could not be passed would not come to the rescue of the respondent to avail the benefit of the new scheme. We unhesitatingly rejects the submissions to avail benefits under New Scheme raised by the respondents to reopen the issue.
### Response:
1
### Explanation:
12. After hearing learned counsel for the parties, we are of the considered opinion that the order passed by the High Court cannot be allowed to sustain. Later on Section 22A in the MRTP Act was inserted by Maharashtra Act No.10 of 2011 dated 05.04.2011 so as to provide what are modifications of "substantial nature". Section 22 cannot be said to be applicable.A reading of Section 31 of the MRTP Act clearly reveals that the Government was required to invite objections only in case the change in the public purpose is a substantial one and not otherwise. The State Government while sanctioning the Development Plan reserved the suit lands for Bus Depot instead of Parking. In our considered view, the change of public purpose from Parking to Bus Depot was not a substantial change and therefore there was no need to invite fresh objections / suggestions as directed by the High Court.15. Once declaration under Section 6 had been issued for the acquisition of the land for Bus Depot, it was supposed to be taken to the logical conclusion. The High Court has also held in "Bombay Environmental Action Group v. The State of Maharashtra", 1990 M.L.J. (Supra) that only in case of substantial change in the nature of public purpose, fresh objections/suggestions were required to be invited and not otherwise. As the change of public purpose in the final Sanctioned Plan made from Parking to Bus Depot was not a substantial change, it was not incumbent upon the appellants to invite fresh objections.16. As to the submission raised by learned senior counsel for the respondent regarding framing of the new scheme, since the land stands reserved for bus depot under New Scheme also that further justify our conclusion that land was required to be notified for the public purpose of Bus Depot, the, High Court erred in law in holding otherwise. Some more options have been given to the Planning Authority and the appropriate authority under New Scheme would also not come to rescue of respondents as the New Scheme is not applicable to the respondents. As the new notified Scheme cannot be said to be applicable to the acquisition which has been initiated inare of the considered view that since order of the High court is illegal and provisions of new scheme are not applicable and due to interim stay, award could not be passed would not come to the rescue of the respondent to avail the benefit of the new scheme. We unhesitatingly rejects the submissions to avail benefits under New Scheme raised by the respondents to reopen the issue.
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Tatanagar Foundry Company Vs. Their Workmen | stated that the appellant had not costed any sleeper without pig iron at any time. Thus, the alternative plea raised by the respondents to suggest that if the appellant had so desired, it could have avoided to lay off its workmen, has also been rejected by the Tribunal. 10. We Tribunal, however, was inclined to take the view that if the management had been more foresighted, it could have avoided the unfortunate position which it had to face at the relevant time and because the Tribunal thought that the situation which faced the appellant at the relevant time was partly due to its negligence, it reached the final conclusion that the lay-off was not altogether justified. The Tribunals view appears to be that if reasonable care had been exercised by the appellant, the situation could have been avoided. It is this part of its finding that is seriously disputed before us by the appellant. 11. Under section 2(kkk), "lay-off" means, inter alia, the failure, or inability of an employer on account of shortage of raw materials to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. As we have already seen, there is no doubt that raw materials were not available to the appellant at the relevant time and so the layoff which is the subject-matter of the present dispute satisfies the test prescribed by the definition. Section 25C provides for the right of workmen laid off for compensation, and it is common ground that compensation equal to 50% of the total of the basic wages and dearness allowance as therein prescribed, has been paid by the appellant to the respondents. The issue referred to the Tribunal was whether the action of the management in laying off the workmen was justified. If not, to what relief were the respondents entitled? In other words, the reference shows that it was only 4 the Tribunal came to the conclusion that the lay-off was not justified that the question of considering what additional compensation should be paid to the respondents could arise. If the lay-off is justified and it satisfies the requirements of the definition under S. 2 (kkk), the only relief to which the workmen laid of are entitled is the statutory rebel prescribed by S. 25C. There is no doubt or dispute about this position. 12. It is also not in dispute that if the lay-off is mala fide in the sense that the employer has deliberately and maliciously brought about a situation where lay-off became necessary, then it would not be a lay-off which is justified under S. (kkk) and the relief provided to the laid of workmen under section 25C would not be the only relief to which they are entitled, Mala fides of the employer in declaring a lay-off really mean that no lay off, as contemplated by the definition, has in law taken place and so, a finding as to mala fides of the employer in declaring a lay-off naturally takes the lay-off out of the definition of S. 2 (kkk) and as such, .S. 25C cannot be held to be applicable to it so as to confine the workmens right to the compensation therein prescribed. If the lay-off has been declared in order to victimise the workmen or for some other ulterior purpose, the position would be the same. It would not be a lay-off as contemplated by S. 2(kkk). 13. But when dealing with a lay-off like the one with which we are concerned in the present appeal, it would not be open to the Tribunal to enquire whether the appellant could have avoided the lay-off if he had been more diligent, more careful or more far-sighted. That is a matter relating to the management of the undertaking and unless mala fides are alleged or proved, it would be difficult to assume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of managements of the employer and investigate whether a more prudent management could have avoided the situation which led to a lay-off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself. The Tribunal has found that the appellant was in financial difficulties at the relevant time; it has found that the appellant was not actuated by any mala fide intentions: it has come to the conclusion that the lay-off was not the result of any ulterior motive, and yet it has finally come to the conclusion that it the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Apart from the fact that this conclusion does not appear to be borne out by any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. The appellant is no doubt, expected to manage affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the difficulties. That is why we think in embarking upon in enquiry as to whether the appellant had shown sufficient foresight in managing its affairs, the Tribunal has exceeded its jurisdiction. Besides as we have just, indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid the retrenchment compensation due to them. | 1[ds]In other words, the reference shows that it was only 4 the Tribunal came to the conclusion that the lay-off was not justified that the question of considering what additional compensation should be paid to the respondents could arise. If the lay-off is justified and it satisfies the requirements of the definition under S. 2 (kkk), the only relief to which the workmen laid of are entitled is the statutory rebel prescribed by S. 25C. There is no doubt or dispute about this position12. It is also not in dispute that if the lay-off is mala fide in the sense that the employer has deliberately and maliciously brought about a situation where lay-off became necessary, then it would not be a lay-off which is justified under S. (kkk) and the relief provided to the laid of workmen under section 25C would not be the only relief to which they are entitled, Mala fides of the employer in declaring a lay-off really mean that no lay off, as contemplated by the definition, has in law taken place and so, a finding as to mala fides of the employer in declaring a lay-off naturally takes the lay-off out of the definition of S. 2 (kkk) and as such, .S. 25C cannot be held to be applicable to it so as to confine the workmens right to the compensation therein prescribed. If the lay-off has been declared in order to victimise the workmen or for some other ulterior purpose, the position would be the same. It would not be a lay-off as contemplated by S. 2(kkk)13. But when dealing with a lay-off like the one with which we are concerned in the present appeal, it would not be open to the Tribunal to enquire whether the appellant could have avoided the lay-off if he had been more diligent, more careful or more far-sighted. That is a matter relating to the management of the undertaking and unless mala fides are alleged or proved, it would be difficult to assume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of managements of the employer and investigate whether a more prudent management could have avoided the situation which led to a lay-off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself. The Tribunal has found that the appellant was in financial difficulties at the relevant time; it has found that the appellant was not actuated by any mala fide intentions: it has come to the conclusion that the lay-off was not the result of any ulterior motive, and yet it has finally come to the conclusion that it the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Apart from the fact that this conclusion does not appear to be borne out by any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. The appellant is no doubt, expected to manage affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the difficulties. That is why we think in embarking upon in enquiry as to whether the appellant had shown sufficient foresight in managing its affairs, the Tribunal has exceeded its jurisdiction. Besides as we have just, indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid the retrenchment compensation due to them. | 1 | 2,558 | 741 | ### 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:
stated that the appellant had not costed any sleeper without pig iron at any time. Thus, the alternative plea raised by the respondents to suggest that if the appellant had so desired, it could have avoided to lay off its workmen, has also been rejected by the Tribunal. 10. We Tribunal, however, was inclined to take the view that if the management had been more foresighted, it could have avoided the unfortunate position which it had to face at the relevant time and because the Tribunal thought that the situation which faced the appellant at the relevant time was partly due to its negligence, it reached the final conclusion that the lay-off was not altogether justified. The Tribunals view appears to be that if reasonable care had been exercised by the appellant, the situation could have been avoided. It is this part of its finding that is seriously disputed before us by the appellant. 11. Under section 2(kkk), "lay-off" means, inter alia, the failure, or inability of an employer on account of shortage of raw materials to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. As we have already seen, there is no doubt that raw materials were not available to the appellant at the relevant time and so the layoff which is the subject-matter of the present dispute satisfies the test prescribed by the definition. Section 25C provides for the right of workmen laid off for compensation, and it is common ground that compensation equal to 50% of the total of the basic wages and dearness allowance as therein prescribed, has been paid by the appellant to the respondents. The issue referred to the Tribunal was whether the action of the management in laying off the workmen was justified. If not, to what relief were the respondents entitled? In other words, the reference shows that it was only 4 the Tribunal came to the conclusion that the lay-off was not justified that the question of considering what additional compensation should be paid to the respondents could arise. If the lay-off is justified and it satisfies the requirements of the definition under S. 2 (kkk), the only relief to which the workmen laid of are entitled is the statutory rebel prescribed by S. 25C. There is no doubt or dispute about this position. 12. It is also not in dispute that if the lay-off is mala fide in the sense that the employer has deliberately and maliciously brought about a situation where lay-off became necessary, then it would not be a lay-off which is justified under S. (kkk) and the relief provided to the laid of workmen under section 25C would not be the only relief to which they are entitled, Mala fides of the employer in declaring a lay-off really mean that no lay off, as contemplated by the definition, has in law taken place and so, a finding as to mala fides of the employer in declaring a lay-off naturally takes the lay-off out of the definition of S. 2 (kkk) and as such, .S. 25C cannot be held to be applicable to it so as to confine the workmens right to the compensation therein prescribed. If the lay-off has been declared in order to victimise the workmen or for some other ulterior purpose, the position would be the same. It would not be a lay-off as contemplated by S. 2(kkk). 13. But when dealing with a lay-off like the one with which we are concerned in the present appeal, it would not be open to the Tribunal to enquire whether the appellant could have avoided the lay-off if he had been more diligent, more careful or more far-sighted. That is a matter relating to the management of the undertaking and unless mala fides are alleged or proved, it would be difficult to assume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of managements of the employer and investigate whether a more prudent management could have avoided the situation which led to a lay-off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself. The Tribunal has found that the appellant was in financial difficulties at the relevant time; it has found that the appellant was not actuated by any mala fide intentions: it has come to the conclusion that the lay-off was not the result of any ulterior motive, and yet it has finally come to the conclusion that it the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Apart from the fact that this conclusion does not appear to be borne out by any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. The appellant is no doubt, expected to manage affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the difficulties. That is why we think in embarking upon in enquiry as to whether the appellant had shown sufficient foresight in managing its affairs, the Tribunal has exceeded its jurisdiction. Besides as we have just, indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid the retrenchment compensation due to them.
### Response:
1
### Explanation:
In other words, the reference shows that it was only 4 the Tribunal came to the conclusion that the lay-off was not justified that the question of considering what additional compensation should be paid to the respondents could arise. If the lay-off is justified and it satisfies the requirements of the definition under S. 2 (kkk), the only relief to which the workmen laid of are entitled is the statutory rebel prescribed by S. 25C. There is no doubt or dispute about this position12. It is also not in dispute that if the lay-off is mala fide in the sense that the employer has deliberately and maliciously brought about a situation where lay-off became necessary, then it would not be a lay-off which is justified under S. (kkk) and the relief provided to the laid of workmen under section 25C would not be the only relief to which they are entitled, Mala fides of the employer in declaring a lay-off really mean that no lay off, as contemplated by the definition, has in law taken place and so, a finding as to mala fides of the employer in declaring a lay-off naturally takes the lay-off out of the definition of S. 2 (kkk) and as such, .S. 25C cannot be held to be applicable to it so as to confine the workmens right to the compensation therein prescribed. If the lay-off has been declared in order to victimise the workmen or for some other ulterior purpose, the position would be the same. It would not be a lay-off as contemplated by S. 2(kkk)13. But when dealing with a lay-off like the one with which we are concerned in the present appeal, it would not be open to the Tribunal to enquire whether the appellant could have avoided the lay-off if he had been more diligent, more careful or more far-sighted. That is a matter relating to the management of the undertaking and unless mala fides are alleged or proved, it would be difficult to assume that the Industrial Tribunal has jurisdiction to sit in judgment over the acts of managements of the employer and investigate whether a more prudent management could have avoided the situation which led to a lay-off. The danger involved in permitting such jurisdiction to the Tribunal is illustrated by the present award itself. The Tribunal has found that the appellant was in financial difficulties at the relevant time; it has found that the appellant was not actuated by any mala fide intentions: it has come to the conclusion that the lay-off was not the result of any ulterior motive, and yet it has finally come to the conclusion that it the affairs of the appellant had been better managed and more foresight had been shown by the appellant prior to the time when the crisis was reached, pig iron could have been secured and lay-off could have been avoided. Apart from the fact that this conclusion does not appear to be borne out by any evidence on record, it seems to us that the Tribunal exceeded its jurisdiction in trying to decide whether better management could have avoided the crisis. The appellant is no doubt, expected to manage affairs prudently, but it would, we think, not be reasonable or fair to hold that if the employer is faced with a situation under which for lack of raw materials he has to lay-off his workmen, it is necessary that he must submit to an enquiry by the Industrial Tribunal about the prudence of the management and the fore-thought displayed by it in anticipating and avoiding the difficulties. That is why we think in embarking upon in enquiry as to whether the appellant had shown sufficient foresight in managing its affairs, the Tribunal has exceeded its jurisdiction. Besides as we have just, indicated, its finding on the question of negligence is not supported by any evidence on record nor by probabilities in the case. In that connection, it is significant that subsequently the section in question has been closed and the retrenched workmen have been paid the retrenchment compensation due to them.
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Daisy & Another Vs. State of Kerala | to the appellant in Appeal No. 1011 of 1967 and Rs. 180/- per cent in respect of the larger plot of 255 cents and Rs. 226/- per cent in respect of the plot of 45 cents. The District Court disposed of the applications under Section 18 of the Act by enhancing the rate of compensation to Rs. 325/- per cent with regard to the first plot, Rs. 250/- per cent with regard to the second plot and Rs. 350/- with regard to the third plot. The High Court enhanced the compensation by Rs. 25/- per cent in respect of the first plot, and by Rs. 400/- per cent in the case of the third plot but left unaffected the compensation with regard to the largest plot.4. Before the High Court the appellants relied on seven documents Exs. P-1 to P-7 as also a judgment of the High Court in A.S. No. 537 of 1961 in respect of land which was contiguous to the appellants land. Before us learned for the appellant sought to rely principally on Ex. P-7 and the judgment in A.S. No. 537 of 1961. P-7 was a judgment of the District Court Kottayam concerning acquisition of a piece of land on the northern side of the Civil Lines Kottayam which is situate quite close to the appellants lands. In respect of the western portion of the said property the District Judge awarded compensation at the rate of Rs. 1, 000/per cent. The High Court refused to be guided by Ex. P-7 observing that no attempt had been made before it to compare the relative importance of the land involved in Ex. P-7 and that in the appeals before it. The High Court further commented that :"Admittedly, the lands in the vicinity of the Civil Lines vary largely in their relative importance, the western side of the Civil Lines being the busiest part of the town and the eastern side, far less important."and on this basis held that Ex. P-7 could not afford proper guidance in fixing the compensation for the acquired plots. With regard to judgment in A.S. No. 537 of 1961 adjoining the Civil Lines in the east the High Court took the view that land abutting on K.K. Road must be given the same land value. The High Court was not however prepared to accord the same compensation in respect of the second plot on the ground that it had no road frontage and that it was a "quick slope" with a difference in level of 70 ft. between the two sides and at the time of acquisition only some rubber trees stood on the land with no building on it : accordingly it did not see fit to disturb the awarded land value at Rs. 250/- per cent. With regard to the first piece of land the High Court held that it abutted on a narrow road lying to the north of the Civil Lines and had also a slope between the two sides, that there was no building on the land at the time of acquisition but only some rubber trees. In view of the award in A.S. No. 537 of 1961, the High Court held that enhancement of Rs. 25/- per cent over Rs. 325/- per cent awarded was called for.5. Ex. P-7 arose out of reference under Section 18 in respect of six contiguous plots in S. No. 67/1 in the said village covering a total area of Ac. 4-44.2 cents. The notification under Section 4 in this case was issued on February 19, 1957 and possession was taken on April 17, 1957 while the notification in the appeals before us was, dated September 29, 1956, possession being taken in October and November, 1956. It is therefore clear that the acquisitions in the two cases took place within a very short space of time. As is to be seen from the map Ex. D-10 PLOT 67/1 was situated quite close to the Civil Lines and was a matter of fact now forms part of the Civil Lines itself. It was surrounded on all sides by road one of them being the major K.K. Road. The District Judge giving (open land) and it was facing the Civil Lines and was suitable as a commercial building site. Considering the evidence before him in some detail, the District Judge found that half of the maidan portion of the property had a potential value at Rs. 1, 250/- per cent and the remaining half at Rs. 750/- per cent and in this view he fixed the average market price for the entire maidan at Rs. 1, 000/- per cent. It is true that the plot 67/1A-1 has not the same advantage as the six plots in 67/1 covered by Ex. P-7 but it abuts on a road and is not far removed from 67/1. In our it will not be improper to fix the compensation for this plot of land at Rs. 500/- per cent.6. With regard to the major plot measuring 255 cents we feel that there is no ground for disturbing the basis of compensation of Rs. 250/- per cent already awarded. While it is true that this plot of land is contiguous to the plot 67/1A-1 it must be borne in mind that it has no road frontage and what is more, is a part of hill-side with a slope of 1 in 6. This block of land can only be utilised for erecting houses at a considerable cost of levelling and terracing and cannot be put on a par with plot 67/1A-1.7. With regard to 67/1A-4 which abuts on the main K.K. Road our view is that it should be compensated for at the same rate as the average rate awarded to plot 67/1. As has been found it is more or less a level plot and abuts on the main K.K. Road. We therefore enhance the rate of compensation with respect to this plot by another Rs. 250/- per cent. | 1[ds]It is therefore clear that the acquisitions in the two cases took place within a very short space of time. As is to be seen from the map Ex.PLOT 67/1 was situated quite close to the Civil Lines and was a matter of fact now forms part of the Civil Lines itself. It was surrounded on all sides by road one of them being the major K.K. Road. The District Judge giving (open land) and it was facing the Civil Lines and was suitable as a commercial building site. Considering the evidence before him in some detail, the District Judge found that half of the maidan portion of the property had a potential value at Rs. 1, 250/per cent and the remaining half at Rs. 750/per cent and in this view he fixed the average market price for the entire maidan at Rs. 1, 000/per cent. It is true that the plothas not the same advantage as the six plots in 67/1 covered by Ex.but it abuts on a road and is not far removed from 67/1. In our it will not be improper to fix the compensation for this plot of land at Rs. 500/per cent.6. With regard to the major plot measuring 255 cents we feel that there is no ground for disturbing the basis of compensation of Rs. 250/per cent already awarded. While it is true that this plot of land is contiguous to the plotit must be borne in mind that it has no road frontage and what is more, is a part ofWith regard towhich abuts on the main K.K. Road our view is that it should be compensated for at the same rate as the average rate awarded to plot 67/1. As has been found it is more or less a level plot and abuts on the main K.K. Road. We therefore enhance the rate of compensation with respect to this plot by another Rs. 250/ | 1 | 1,473 | 351 | ### 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:
to the appellant in Appeal No. 1011 of 1967 and Rs. 180/- per cent in respect of the larger plot of 255 cents and Rs. 226/- per cent in respect of the plot of 45 cents. The District Court disposed of the applications under Section 18 of the Act by enhancing the rate of compensation to Rs. 325/- per cent with regard to the first plot, Rs. 250/- per cent with regard to the second plot and Rs. 350/- with regard to the third plot. The High Court enhanced the compensation by Rs. 25/- per cent in respect of the first plot, and by Rs. 400/- per cent in the case of the third plot but left unaffected the compensation with regard to the largest plot.4. Before the High Court the appellants relied on seven documents Exs. P-1 to P-7 as also a judgment of the High Court in A.S. No. 537 of 1961 in respect of land which was contiguous to the appellants land. Before us learned for the appellant sought to rely principally on Ex. P-7 and the judgment in A.S. No. 537 of 1961. P-7 was a judgment of the District Court Kottayam concerning acquisition of a piece of land on the northern side of the Civil Lines Kottayam which is situate quite close to the appellants lands. In respect of the western portion of the said property the District Judge awarded compensation at the rate of Rs. 1, 000/per cent. The High Court refused to be guided by Ex. P-7 observing that no attempt had been made before it to compare the relative importance of the land involved in Ex. P-7 and that in the appeals before it. The High Court further commented that :"Admittedly, the lands in the vicinity of the Civil Lines vary largely in their relative importance, the western side of the Civil Lines being the busiest part of the town and the eastern side, far less important."and on this basis held that Ex. P-7 could not afford proper guidance in fixing the compensation for the acquired plots. With regard to judgment in A.S. No. 537 of 1961 adjoining the Civil Lines in the east the High Court took the view that land abutting on K.K. Road must be given the same land value. The High Court was not however prepared to accord the same compensation in respect of the second plot on the ground that it had no road frontage and that it was a "quick slope" with a difference in level of 70 ft. between the two sides and at the time of acquisition only some rubber trees stood on the land with no building on it : accordingly it did not see fit to disturb the awarded land value at Rs. 250/- per cent. With regard to the first piece of land the High Court held that it abutted on a narrow road lying to the north of the Civil Lines and had also a slope between the two sides, that there was no building on the land at the time of acquisition but only some rubber trees. In view of the award in A.S. No. 537 of 1961, the High Court held that enhancement of Rs. 25/- per cent over Rs. 325/- per cent awarded was called for.5. Ex. P-7 arose out of reference under Section 18 in respect of six contiguous plots in S. No. 67/1 in the said village covering a total area of Ac. 4-44.2 cents. The notification under Section 4 in this case was issued on February 19, 1957 and possession was taken on April 17, 1957 while the notification in the appeals before us was, dated September 29, 1956, possession being taken in October and November, 1956. It is therefore clear that the acquisitions in the two cases took place within a very short space of time. As is to be seen from the map Ex. D-10 PLOT 67/1 was situated quite close to the Civil Lines and was a matter of fact now forms part of the Civil Lines itself. It was surrounded on all sides by road one of them being the major K.K. Road. The District Judge giving (open land) and it was facing the Civil Lines and was suitable as a commercial building site. Considering the evidence before him in some detail, the District Judge found that half of the maidan portion of the property had a potential value at Rs. 1, 250/- per cent and the remaining half at Rs. 750/- per cent and in this view he fixed the average market price for the entire maidan at Rs. 1, 000/- per cent. It is true that the plot 67/1A-1 has not the same advantage as the six plots in 67/1 covered by Ex. P-7 but it abuts on a road and is not far removed from 67/1. In our it will not be improper to fix the compensation for this plot of land at Rs. 500/- per cent.6. With regard to the major plot measuring 255 cents we feel that there is no ground for disturbing the basis of compensation of Rs. 250/- per cent already awarded. While it is true that this plot of land is contiguous to the plot 67/1A-1 it must be borne in mind that it has no road frontage and what is more, is a part of hill-side with a slope of 1 in 6. This block of land can only be utilised for erecting houses at a considerable cost of levelling and terracing and cannot be put on a par with plot 67/1A-1.7. With regard to 67/1A-4 which abuts on the main K.K. Road our view is that it should be compensated for at the same rate as the average rate awarded to plot 67/1. As has been found it is more or less a level plot and abuts on the main K.K. Road. We therefore enhance the rate of compensation with respect to this plot by another Rs. 250/- per cent.
### Response:
1
### Explanation:
It is therefore clear that the acquisitions in the two cases took place within a very short space of time. As is to be seen from the map Ex.PLOT 67/1 was situated quite close to the Civil Lines and was a matter of fact now forms part of the Civil Lines itself. It was surrounded on all sides by road one of them being the major K.K. Road. The District Judge giving (open land) and it was facing the Civil Lines and was suitable as a commercial building site. Considering the evidence before him in some detail, the District Judge found that half of the maidan portion of the property had a potential value at Rs. 1, 250/per cent and the remaining half at Rs. 750/per cent and in this view he fixed the average market price for the entire maidan at Rs. 1, 000/per cent. It is true that the plothas not the same advantage as the six plots in 67/1 covered by Ex.but it abuts on a road and is not far removed from 67/1. In our it will not be improper to fix the compensation for this plot of land at Rs. 500/per cent.6. With regard to the major plot measuring 255 cents we feel that there is no ground for disturbing the basis of compensation of Rs. 250/per cent already awarded. While it is true that this plot of land is contiguous to the plotit must be borne in mind that it has no road frontage and what is more, is a part ofWith regard towhich abuts on the main K.K. Road our view is that it should be compensated for at the same rate as the average rate awarded to plot 67/1. As has been found it is more or less a level plot and abuts on the main K.K. Road. We therefore enhance the rate of compensation with respect to this plot by another Rs. 250/
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Jagdish Kumar Sood Vs. United India Insurance Co. Ltd. & Others | Dr. D.Y. Chandrachud, J. 1. The Motor Accident Claims Tribunal allowed a claim for compensation filed by the third respondent. The claim arose from the death of the husband of the claimant on 4 January 2009 as a result of an accident caused by a collision with an offending truck. The Tribunal awarded an amount of Rs. 4,08,000 together with interest at 6 per cent per annum. In an appeal filed by the third respondent the High Court enhanced the compensation to Rs. 8,04,000. Interest @ 7.5 per cent per annum was awarded on the enhanced compensation.2. The Tribunal absolved the insurer on the ground that the vehicle involved in the accident was a Light Goods Vehicle. The driver had a licence to drive the Light Motor Vehicle. The Tribunal held that in the absence of a specific authorization to drive a transport vehicle, the liability could not be fastened on the insurer. The Tribunal directed the insurer to pay in the first instance and allowed it to recover the compensation from the driver and the owner. The present appeal has been filed by the owner.3. The High Court, while enhancing the compensation did not interfere with the order of the Tribunal absolving the insurer. 4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v. Oriental Insurance Company Limited, in which it has been inter alia held as follows: "60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994." (Id at page 709)"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form." (Id at page 710) 5. Having regard to the above position, the Civil Appeal will have to be allowed. | 1[ds]4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v. Oriental Insurance Company Limited,"Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994." (Id at page 709)"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 andin the form." (Id at pageHaving regard to the above position, the Civil Appeal will have to be allowed. | 1 | 546 | 305 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Dr. D.Y. Chandrachud, J. 1. The Motor Accident Claims Tribunal allowed a claim for compensation filed by the third respondent. The claim arose from the death of the husband of the claimant on 4 January 2009 as a result of an accident caused by a collision with an offending truck. The Tribunal awarded an amount of Rs. 4,08,000 together with interest at 6 per cent per annum. In an appeal filed by the third respondent the High Court enhanced the compensation to Rs. 8,04,000. Interest @ 7.5 per cent per annum was awarded on the enhanced compensation.2. The Tribunal absolved the insurer on the ground that the vehicle involved in the accident was a Light Goods Vehicle. The driver had a licence to drive the Light Motor Vehicle. The Tribunal held that in the absence of a specific authorization to drive a transport vehicle, the liability could not be fastened on the insurer. The Tribunal directed the insurer to pay in the first instance and allowed it to recover the compensation from the driver and the owner. The present appeal has been filed by the owner.3. The High Court, while enhancing the compensation did not interfere with the order of the Tribunal absolving the insurer. 4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v. Oriental Insurance Company Limited, in which it has been inter alia held as follows: "60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994." (Id at page 709)"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form." (Id at page 710) 5. Having regard to the above position, the Civil Appeal will have to be allowed.
### Response:
1
### Explanation:
4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v. Oriental Insurance Company Limited,"Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994." (Id at page 709)"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 andin the form." (Id at pageHaving regard to the above position, the Civil Appeal will have to be allowed.
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Nikhil Merchant Vs. C.B.I. | the appellant showing inflated stocks to induce the Bank to provide additional credit facility and funds which it would not have otherwise been legally entitled to.16. Rebutting the submissions made on behalf of the appellant, the learned Additional Solicitor General referred to the provisions of Sections 463 and 464 IPC which relate to the definition of "forgery" and "the making of a false document". He pointed out that under the definition of forgery in Section 463 any person making any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with any property or to enter into any expressed or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. Referring to Section 464 he submitted that a person is said to make a false document or false electronic record who dishonestly or fraudulently, inter alia, makes, signs, seals or executes a document or part of a document with the intention of causing it to be believed that such document was made, signed, sealed, executed, transmitted or affixed by or by authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. The learned Additional Solicitor General submitted that in the instant case the preparation of such a false document with the intention of cheating comes squarely within the definition of forgery under Section 463 IPC.17. It was urged that all the ingredients of offences committed under Sections 468 and 471 as also Section 420 IPC are made out in the charge sheet, and hence, even if the matter was compromised between the parties, the criminal proceedings could not be compounded on that basis since the offences involved also include non-compoundable offences.18. It was urged that even if no steps have been taken by the CBI since the charge sheet was filed in 1998, the same would not be a ground for quashing the criminal proceedings once the charge sheet had been filed. He submitted that in view of the decision of this Court in Supreme Court Bar Association vs. Union of India (1998) 4 SCC 409 , this Court would possibly not be justified in giving directions in the instant case even under Article 142 of the Constitution, since the Constitution Bench had held that in exercise of its plenary powers under Article 142 this Court could not ignore any substantive statutory provision dealing with the subject. It is a residuary power, supplementary and complementary to the powers specifically conferred on the Supreme Court by statutes, exercisable to do complete justice between the parties where it is just and equitable to do so. It was further observed that the power under Article 142 of the Constitution was vested in the Supreme Court to prevent any obstruction to the stream of justice.19. The learned Additional Solicitor General submitted that the power under Article 142 is to be exercised sparingly and only in rare and exceptional cases and in the absence of any exceptional circumstances the appeal was liable to be dismissed.20. Having carefully considered the facts of the case and the submissions of learned counsel in regard thereto, we are of the view that, although, technically there is force in the submissions made by the learned Additional Solicitor General, the facts of the case warrant interference in these proceedings.21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshis case (supra) becomes relevant.23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.25. We, therefore, set aside the order passed by the High Court dismissing the petitioners revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant. | 1[ds]Having carefully considered the facts of the case and the submissions of learned counsel in regard thereto, we are of the view that, although, technically there is force in the submissions made by the learned Additional Solicitor General, the facts of the case warrant interference in these proceedings.21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshis case (supra) becomes relevant.23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.25. We, therefore, set aside the order passed by the High Court dismissing the petitioners revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant. | 1 | 3,245 | 507 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the appellant showing inflated stocks to induce the Bank to provide additional credit facility and funds which it would not have otherwise been legally entitled to.16. Rebutting the submissions made on behalf of the appellant, the learned Additional Solicitor General referred to the provisions of Sections 463 and 464 IPC which relate to the definition of "forgery" and "the making of a false document". He pointed out that under the definition of forgery in Section 463 any person making any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with any property or to enter into any expressed or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. Referring to Section 464 he submitted that a person is said to make a false document or false electronic record who dishonestly or fraudulently, inter alia, makes, signs, seals or executes a document or part of a document with the intention of causing it to be believed that such document was made, signed, sealed, executed, transmitted or affixed by or by authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. The learned Additional Solicitor General submitted that in the instant case the preparation of such a false document with the intention of cheating comes squarely within the definition of forgery under Section 463 IPC.17. It was urged that all the ingredients of offences committed under Sections 468 and 471 as also Section 420 IPC are made out in the charge sheet, and hence, even if the matter was compromised between the parties, the criminal proceedings could not be compounded on that basis since the offences involved also include non-compoundable offences.18. It was urged that even if no steps have been taken by the CBI since the charge sheet was filed in 1998, the same would not be a ground for quashing the criminal proceedings once the charge sheet had been filed. He submitted that in view of the decision of this Court in Supreme Court Bar Association vs. Union of India (1998) 4 SCC 409 , this Court would possibly not be justified in giving directions in the instant case even under Article 142 of the Constitution, since the Constitution Bench had held that in exercise of its plenary powers under Article 142 this Court could not ignore any substantive statutory provision dealing with the subject. It is a residuary power, supplementary and complementary to the powers specifically conferred on the Supreme Court by statutes, exercisable to do complete justice between the parties where it is just and equitable to do so. It was further observed that the power under Article 142 of the Constitution was vested in the Supreme Court to prevent any obstruction to the stream of justice.19. The learned Additional Solicitor General submitted that the power under Article 142 is to be exercised sparingly and only in rare and exceptional cases and in the absence of any exceptional circumstances the appeal was liable to be dismissed.20. Having carefully considered the facts of the case and the submissions of learned counsel in regard thereto, we are of the view that, although, technically there is force in the submissions made by the learned Additional Solicitor General, the facts of the case warrant interference in these proceedings.21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshis case (supra) becomes relevant.23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.25. We, therefore, set aside the order passed by the High Court dismissing the petitioners revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant.
### Response:
1
### Explanation:
Having carefully considered the facts of the case and the submissions of learned counsel in regard thereto, we are of the view that, although, technically there is force in the submissions made by the learned Additional Solicitor General, the facts of the case warrant interference in these proceedings.21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshis case (supra) becomes relevant.23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.25. We, therefore, set aside the order passed by the High Court dismissing the petitioners revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant.
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Jaydayal Poddar (Deceased) Through His L.Rs Andanother Vs. Mst. Bibi Hazra And Ors | used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of the husband.13. Learned Counsel next referred to the two mortgage deeds Exhs. C-1 and C (1)-1 dated 6th January, 1948 and 26th July, 1948 respectively executed by Abdul Karim in favour of Abdul Latif (Defendant No. 3). Emphasis was laid on the fact that Abdul Latif was the son-in-law of Abdul Karim and the husband of Bibi Hazra (Defendant No. 2). We have also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.14. Learned Counsel further referred to a certified copy of the order dated 22-11-1950 (Ex. E. 1) and urged that this order whereby Mst. Hakimunnissas claim of her being the real owner of the attached house was dismissed was a weighty piece of evidence admissible under Section 13 of the Evidence Act and taken in conjunction with the judgment dated 22-11-1950 vide Ex. E (1) - 1 and the recitals in the deed was sufficient to show that Mst. Hakimunnissa was only a benamidar of her husband.15. It is common ground that the house in question at one time belonged to Abdul Motlib and he had rented it out to Abdul Karim. The original owner Motlib had mortgaged a part of the house to one Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against four persons (1) Abdul Karim; (2) Mst. Hakimunissa (3) Bibi Khatoon and (4) Sh. Motlib inter alia for the recovery of rent with interest for the period 21-3-1941 to 20-3-1942. The suit was partly decreed against Abdul Karim alone and was dismissed as against Hakimunnissa by the Munsiff on 1-3-1943 vide Exh. 1-II. Abdul Karims appeal against that decree was dismissed and the decree of the trial court with some modification was maintained. Sahu then took out execution of his decree against the judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an application under Section 47 (under Order 21, rule 57) of the Code of Civil Procedure claiming that the attached house in plot 216 was her exclusive property and her husband had no right or interest in it. Her application was dismissed by the Munsiff on 22-11-1943 with the finding that Mst. Hakimunnissa was only a benamidar of the judgment debtor. Abdul Karim. Her appeal against that order was disallowed by the Appellate Court on 21-2-1944 vide Ex. 10.16. Mr. Desai very fairly conceded that this order, dated 22-11-1943, did not operate as res judicata because the Munsiff was not competent to decide the subsequent suit from which the present appeal has arisen but he urged that this order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst. Hakimunnissa to establish her right and as such, this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa to establish her right and as such this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa was merely a benamidar in respect of the house in dispute.17. The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband. | 0[ds]This contention does not appear to be tenable. It is not proper to tear the above recitals out of the context and read them in isolation. They must be read with the preceding and succeeding contents of the document (Ex. D/1) and also the connected recitals in the sale-deed, (C-(1)-(II)) dated 1st April, 1942. In the latter deed Hakimunnissa inter alia stated that she had previously taken in mortgage plot No. 216, per registered mortgage bond dated 13-9-1940 from one Sh. Abdul Motlib and later on she had purchased that plot including the house, for Rs.4300/- under the sale-deed dated 10th May 1941 (Ex. D/1) from this Motlib. It is significant to note that Abdul Karim (Defendant No. 1) had signed this deed as an attesting witness. In the deed Ex. D/1, there is a clear reference to this previous mortgage executed in favour of Mst. Hakimunnissa and the vendor therein is repeatedly referring to Mst. Hakimunnissa as the claimant (creditor) and the payment of these past debts is mentioned as a reason for making the sale by the vendor Motlib. The learned Judges of the High Court have rightly construed these recitals as indicative of Hakimunnissa being the real purchaser of the property.No evidence whatever was led to show that there was any motive or reason for giving a benami character to the transaction. Abdul Karim who had special knowledge of the circumstances bearing on such motive, if any, did not say a word on this point. There was not even an oblique suggestion that Abdul Karim was heavily under debt and in order to avoid payment of such debts, he thought it fit to acquire the house in the name of his wife.12. No capital can be made out of the circumstance that the negotiations for the purchase of the house were carried out by Abdul Karim and a sum of Rs. 1700/- towards the part of the price was paid before the Sub-Registrar by him. It is in evidence that Hakimunnissa was a Pardanishin lady and naturally therefore it was her husband who used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of thehave also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband. | 0 | 3,566 | 970 | ### Instruction:
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used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of the husband.13. Learned Counsel next referred to the two mortgage deeds Exhs. C-1 and C (1)-1 dated 6th January, 1948 and 26th July, 1948 respectively executed by Abdul Karim in favour of Abdul Latif (Defendant No. 3). Emphasis was laid on the fact that Abdul Latif was the son-in-law of Abdul Karim and the husband of Bibi Hazra (Defendant No. 2). We have also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.14. Learned Counsel further referred to a certified copy of the order dated 22-11-1950 (Ex. E. 1) and urged that this order whereby Mst. Hakimunnissas claim of her being the real owner of the attached house was dismissed was a weighty piece of evidence admissible under Section 13 of the Evidence Act and taken in conjunction with the judgment dated 22-11-1950 vide Ex. E (1) - 1 and the recitals in the deed was sufficient to show that Mst. Hakimunnissa was only a benamidar of her husband.15. It is common ground that the house in question at one time belonged to Abdul Motlib and he had rented it out to Abdul Karim. The original owner Motlib had mortgaged a part of the house to one Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against four persons (1) Abdul Karim; (2) Mst. Hakimunissa (3) Bibi Khatoon and (4) Sh. Motlib inter alia for the recovery of rent with interest for the period 21-3-1941 to 20-3-1942. The suit was partly decreed against Abdul Karim alone and was dismissed as against Hakimunnissa by the Munsiff on 1-3-1943 vide Exh. 1-II. Abdul Karims appeal against that decree was dismissed and the decree of the trial court with some modification was maintained. Sahu then took out execution of his decree against the judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an application under Section 47 (under Order 21, rule 57) of the Code of Civil Procedure claiming that the attached house in plot 216 was her exclusive property and her husband had no right or interest in it. Her application was dismissed by the Munsiff on 22-11-1943 with the finding that Mst. Hakimunnissa was only a benamidar of the judgment debtor. Abdul Karim. Her appeal against that order was disallowed by the Appellate Court on 21-2-1944 vide Ex. 10.16. Mr. Desai very fairly conceded that this order, dated 22-11-1943, did not operate as res judicata because the Munsiff was not competent to decide the subsequent suit from which the present appeal has arisen but he urged that this order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst. Hakimunnissa to establish her right and as such, this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa to establish her right and as such this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa was merely a benamidar in respect of the house in dispute.17. The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband.
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This contention does not appear to be tenable. It is not proper to tear the above recitals out of the context and read them in isolation. They must be read with the preceding and succeeding contents of the document (Ex. D/1) and also the connected recitals in the sale-deed, (C-(1)-(II)) dated 1st April, 1942. In the latter deed Hakimunnissa inter alia stated that she had previously taken in mortgage plot No. 216, per registered mortgage bond dated 13-9-1940 from one Sh. Abdul Motlib and later on she had purchased that plot including the house, for Rs.4300/- under the sale-deed dated 10th May 1941 (Ex. D/1) from this Motlib. It is significant to note that Abdul Karim (Defendant No. 1) had signed this deed as an attesting witness. In the deed Ex. D/1, there is a clear reference to this previous mortgage executed in favour of Mst. Hakimunnissa and the vendor therein is repeatedly referring to Mst. Hakimunnissa as the claimant (creditor) and the payment of these past debts is mentioned as a reason for making the sale by the vendor Motlib. The learned Judges of the High Court have rightly construed these recitals as indicative of Hakimunnissa being the real purchaser of the property.No evidence whatever was led to show that there was any motive or reason for giving a benami character to the transaction. Abdul Karim who had special knowledge of the circumstances bearing on such motive, if any, did not say a word on this point. There was not even an oblique suggestion that Abdul Karim was heavily under debt and in order to avoid payment of such debts, he thought it fit to acquire the house in the name of his wife.12. No capital can be made out of the circumstance that the negotiations for the purchase of the house were carried out by Abdul Karim and a sum of Rs. 1700/- towards the part of the price was paid before the Sub-Registrar by him. It is in evidence that Hakimunnissa was a Pardanishin lady and naturally therefore it was her husband who used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of thehave also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband.
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Sonia Vs. Oriental Insruance Co. Ltd. | between these two categories was permitted. It would be necessary for us to reproduce the portion of the Promotional Policy regarding reservation for Scheduled Caste and Scheduled Tribes candidates: As regards exchange of vacancies between SC/ST categories in case no eligible candidate is available in a particular category such exchange is allowed between these two categories to the extent of non-availability of eligible candidates in a particular category. From the above, it cannot be said to be in dispute that when no eligible candidate is available in a particular category, exchange of vacancies between Scheduled Caste and Scheduled Tribes categories can be allowed to the extent of non availability of eligible candidate in a particular category. It may also, at this stage, be noted that the Office Memorandum dated 6th November, 2003 by which permission of exchange of reservation between Scheduled Caste and Scheduled Tribes was withdrawn, was issued at a time when candidates including the appellant had already acted on the basis of the advertisement dated 30th October, 2003 in which permission was granted for exchange of reservation between Scheduled Caste and Scheduled Tribes. Even on a plain reading of clause [6] of the Office Memorandum dated 6th November, 2003, it can be seen that in case some posts reserved for Scheduled Tribes might have been filled by Scheduled Caste candidates by exchange of reservation or vice versa before issuance of the said Office Memorandum, such cases need not be re-opened. This clause would clearly show that the posts reserved for Scheduled Tribes which have been filled by Scheduled Caste candidates by exchange of reservation before issuance of this Office Memorandum need not be disturbed. As noted herein earlier, applications were invited by the respondents on 30th October, 2003 whereas the Office Memorandum withdrawing permission of exchange of vacancies between Scheduled Caste and Scheduled Tribes candidates was issued on 6th November, 2003. Let us now, therefore, consider whether this Office Memorandum could have a retrospective effect or not. In our view, the Office Memorandum dated 6th November, 2003 cannot have or could not have retrospective effect as the appellant would be governed or covered by the date on which applications were invited to fill up the posts of Assistant Administrative Officer, i.e., on 30th October, 2003 and also for the reason that no retrospective effect has been given to the said Office Memorandum. In N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157] this Court has held that where selection process has been initiated by issuing an advertisement inviting applications, selection should normally be regulated by the rule or order then prevalent and also when advertisement expressly states that the appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated. In the present case, admittedly, while inviting applications, respondents advertised the number of vacancies required to be filled under various categories. Notice inviting application also mentioned that if under a particular category an eligible candidate was not available, exchange of vacancies between the two categories was permitted. The appellant acted on the basis of the aforesaid advertisement which permitted her to apply for the post and in fact she was permitted to sit in the examination and was subsequently also found to be a successful candidate in the said examination. Therefore, in view of the aforesaid decision in the case of N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157], we are of the view that OM dated 6th November, 2003 cannot have any retrospective effect and the date on which the applications were invited should be the relevant date for consideration whether exchange of Scheduled Caste and Scheduled Tribes candidates was permissible. The decision in the case of N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157] has also been echoed by a decision of this Court in the case of P. Mahendran and Ors. vs. State of Karnataka and Ors. [1990 [1] SCC 411] . In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the Office Memorandum. On the other hand from the Office Memorandum, as noted herein above, we find that the candidates who had already been selected, the case of such candidates would not be re-opened. A close examination of clause [6] of the Office Memorandum dated 6th November, 2003, in our view, would show that it does not speak about the pending process of selection. It only speaks about the appointments already made and for which a retrospective effect has not been given. Therefore, in view of the principles laid down by the aforesaid two decisions of this Court, the Office Memorandum dated 6th November, 2003, in our view, would not apply to the selection process which started before the said Office Memorandum was issued by the respondents. It may be repeated at this stage that the appellant was permitted to appear for the examination for the post of Assistant Administrative Officer in respect of which she was declared successful on 17th February, 2004 well after the Office Memorandum was issued by the respondents. 8. In view of the above, we are of the view that the High Court was not justified in dismissing the writ petition of the appellant only on the ground that in view of Office Memorandum dated 6th November, 2003, no legal right of the appellant was infringed. Since, we have already held that the Office Memorandum will not be applicable in the case of the appellant and to the pending process of selection, we are of the view that the appellant would be entitled to be empanelled to appear before the Interview Board for selection to the post of Assistant Administrative Officer. 9. For the above reasons, we | 1[ds]are of the view that the High Court was not justified in dismissing the writ petition of the appellant only on the ground that in view of Office Memorandum dated 6th November, 2003, no legal right of the appellant was infringed. Since, we have already held that the Office Memorandum will not be applicable in the case of the appellant and to the pending process of selection, we are of the view that the appellant would be entitled to be empanelled to appear before the Interview Board for selection to the post of Assistant Administrative Officer. | 1 | 1,987 | 106 | ### Instruction:
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between these two categories was permitted. It would be necessary for us to reproduce the portion of the Promotional Policy regarding reservation for Scheduled Caste and Scheduled Tribes candidates: As regards exchange of vacancies between SC/ST categories in case no eligible candidate is available in a particular category such exchange is allowed between these two categories to the extent of non-availability of eligible candidates in a particular category. From the above, it cannot be said to be in dispute that when no eligible candidate is available in a particular category, exchange of vacancies between Scheduled Caste and Scheduled Tribes categories can be allowed to the extent of non availability of eligible candidate in a particular category. It may also, at this stage, be noted that the Office Memorandum dated 6th November, 2003 by which permission of exchange of reservation between Scheduled Caste and Scheduled Tribes was withdrawn, was issued at a time when candidates including the appellant had already acted on the basis of the advertisement dated 30th October, 2003 in which permission was granted for exchange of reservation between Scheduled Caste and Scheduled Tribes. Even on a plain reading of clause [6] of the Office Memorandum dated 6th November, 2003, it can be seen that in case some posts reserved for Scheduled Tribes might have been filled by Scheduled Caste candidates by exchange of reservation or vice versa before issuance of the said Office Memorandum, such cases need not be re-opened. This clause would clearly show that the posts reserved for Scheduled Tribes which have been filled by Scheduled Caste candidates by exchange of reservation before issuance of this Office Memorandum need not be disturbed. As noted herein earlier, applications were invited by the respondents on 30th October, 2003 whereas the Office Memorandum withdrawing permission of exchange of vacancies between Scheduled Caste and Scheduled Tribes candidates was issued on 6th November, 2003. Let us now, therefore, consider whether this Office Memorandum could have a retrospective effect or not. In our view, the Office Memorandum dated 6th November, 2003 cannot have or could not have retrospective effect as the appellant would be governed or covered by the date on which applications were invited to fill up the posts of Assistant Administrative Officer, i.e., on 30th October, 2003 and also for the reason that no retrospective effect has been given to the said Office Memorandum. In N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157] this Court has held that where selection process has been initiated by issuing an advertisement inviting applications, selection should normally be regulated by the rule or order then prevalent and also when advertisement expressly states that the appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated. In the present case, admittedly, while inviting applications, respondents advertised the number of vacancies required to be filled under various categories. Notice inviting application also mentioned that if under a particular category an eligible candidate was not available, exchange of vacancies between the two categories was permitted. The appellant acted on the basis of the aforesaid advertisement which permitted her to apply for the post and in fact she was permitted to sit in the examination and was subsequently also found to be a successful candidate in the said examination. Therefore, in view of the aforesaid decision in the case of N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157], we are of the view that OM dated 6th November, 2003 cannot have any retrospective effect and the date on which the applications were invited should be the relevant date for consideration whether exchange of Scheduled Caste and Scheduled Tribes candidates was permissible. The decision in the case of N.T. Devin Katti vs. Karnataka Public Service Commission [1990[3] SCC 157] has also been echoed by a decision of this Court in the case of P. Mahendran and Ors. vs. State of Karnataka and Ors. [1990 [1] SCC 411] . In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the Office Memorandum. On the other hand from the Office Memorandum, as noted herein above, we find that the candidates who had already been selected, the case of such candidates would not be re-opened. A close examination of clause [6] of the Office Memorandum dated 6th November, 2003, in our view, would show that it does not speak about the pending process of selection. It only speaks about the appointments already made and for which a retrospective effect has not been given. Therefore, in view of the principles laid down by the aforesaid two decisions of this Court, the Office Memorandum dated 6th November, 2003, in our view, would not apply to the selection process which started before the said Office Memorandum was issued by the respondents. It may be repeated at this stage that the appellant was permitted to appear for the examination for the post of Assistant Administrative Officer in respect of which she was declared successful on 17th February, 2004 well after the Office Memorandum was issued by the respondents. 8. In view of the above, we are of the view that the High Court was not justified in dismissing the writ petition of the appellant only on the ground that in view of Office Memorandum dated 6th November, 2003, no legal right of the appellant was infringed. Since, we have already held that the Office Memorandum will not be applicable in the case of the appellant and to the pending process of selection, we are of the view that the appellant would be entitled to be empanelled to appear before the Interview Board for selection to the post of Assistant Administrative Officer. 9. For the above reasons, we
### Response:
1
### Explanation:
are of the view that the High Court was not justified in dismissing the writ petition of the appellant only on the ground that in view of Office Memorandum dated 6th November, 2003, no legal right of the appellant was infringed. Since, we have already held that the Office Memorandum will not be applicable in the case of the appellant and to the pending process of selection, we are of the view that the appellant would be entitled to be empanelled to appear before the Interview Board for selection to the post of Assistant Administrative Officer.
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Commissioner of Income Tax, Gujarat Vs. M/s. Tejaji Farasram Kharawalla Limited | of the grantee acquires for the purpose of the Income-tax Act the character of additional remuneration. 7. We are unable to agree with the decision of the Bombay High Court in Tejaji Farasram Kharawallas case, (1948) 16 ITR 260 : (AIR 1949 Bom 34 ) that the object with which the grant is made by the employer determines the claim to exemption under S. 4 (3) (vi) of the Income-tax Act. The observations made by Chagla, C. J.; at p. 267 (of ITR) : (at p. 35 of AIR) that:"what is emphasized in this sub-clause [S. 4 (3) (vi)] is the purpose of the grant, the object with which the grant was made.* * * Once it is established that the grant was for that particular purpose, it is no longer necessary for the assessee to prove that in fact he expended that grant for the purpose for which it was given. He may spend more, or he may spend less, but qua that grant which is given for a particular purpose he is entitled to the exemption", do not, in our Judgment give due effect to the key words `to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit." What is exempted is not the consideration paid for meeting the expenditure incurred or to be incurred in the performance of the duties of an office or employment the exemption operates only in respect of a special allowance or benefit specifically granted to meet expenses wholly and necessarily incurred in the discharge of the duties of the office or employment. 8. The judgment of the Allahabad High Court in Commissioner of Income-tax U. P. v. Sharma and Co., Kanpur, 1965-57 ITR 470 : (AIR 1965 All 277 ) and especially the observations of Pathak, J., on which reliance was placed by counsel for the Company may also be referred to. In Sharma and Companys case, 1965-57 ITR 470 : (AIR 1965 All 277 ) the assessee firm which was the sole selling agent of a "cotton mill", received a sum exceeding Rs. 67,000/- from the owners of the mills for the purpose of meeting the expenses in connection with the management of a retail cloth shop on behalf of the mill and actually spent only Rupees 12,641/-. The claim of the firm that it was entitled to exemption from liability to pay tax under S. 4 (3) (vi) of the Act (before it was amended in 1955) even in respect of the balance retained by it was upheld by the High Court of Allahabad. Pathak, J., observed that S. 4 (3) (vi), as it then stood, required the Income-tax Officer to enquire whether the purpose of the grant was covered by the language of the clause, and he was not concerned to determine whether the amount granted was actually expended by the recipient. The learned Judge in so holding was impressed by two considerations : that the expression "incurred" means incurred already, or to be incurred in future and that income-tax being an annual tax in a case where the allowance is an ad hoc allowance which is to cover a period longer than or ending after the year of account, or is a periodical allowance, the Income-tax Officer may under the Act exempt expenditure incurred in the year of account and no more, and thereby the intention of the employer would be wholly frustrated and the employee may be called upon to pay tax on a receipt which is not his income. 9. The expression "incurred" means for reasons already set out incurred or to be incurred. But that has no bearing on the question whether the unexpended surplus in the hands of the employee is taxable. And we do not feel impressed by the second consideration. The allowance may be in respect of a period longer than the accounting year or which runs into the succeeding accounting year or years. But on that account the whole receipt reduced by the expenses actually incurred in the year of account is not liable to be brought to tax. If it appears from a review of the circumstances that a special allowance is made for a period longer than the year of account or that the period covered by the grant of a special allowance extends beyond the close of the account year, it would, ill our judgment, be the duty of the Income-tax Officer to determine the amount allowed in respect of the year of account in which the expenditure has been incurred and the difference between the amount so determined and the amount actually expended would alone be brought to tax. 10. It may be noted that the Parliament has by the Finance Act, 1955, with effect from April 1, 1955, recast Cl. (vi) of S. 4 (3) of the Income-tax Act, 1922 and has expressly provided that the special allowance granted to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit to the extent to which such expenses are actually incurred for that purpose, was exempt from tax. The Legislature, by the amendment made it dear that only the expenses actually incurred by the assessee will be exempted under S. 4 (3) (vi). But the principle that an amount granted to cover expenses to be incurred for a period which extends beyond the year of account in which the grant is received will be allocated between the year of account and the period outside the year of account will apply to the Act as amended. 11. There is no doubt that the selling agent under the agreement with the principals holds an employment for profit. No argument to the contrary was advanced before us. It is unnecessary therefore to consider the elaborate judgment of the High Court on the question whether the selling agent holds an office within the meaning of S. 4 (3) (vi) of the Act. | 1[ds]It would, therefore, be reasonable to hold that the allowance granted to meet the expenses wholly and necessarily incurred or to be incurred in the performance of the duties of the office or employment of the grantee alone qualifies for exemption under the Act, and any surplus remaining in the hands of the grantee after meeting the expenses does not bear the character of the allowance for meeting expenses but far performing the duties of the office or employment. This would be so even if the employer has disabled himself from demanding refund of the amount not expended for meeting the expenses incurred or to be incurred in the performance of the duties of an office or employment of profit, and the surplus remaining in the hands of the grantee acquires for the purpose of the Income-tax Act the character of additional remuneration7. We are unable to agree with the decision of the Bombay High Court in Tejaji Farasram Kharawallas case, (1948) 16 ITR 260 : (AIR 1949 Bom 34 ) that the object with which the grant is made by the employer determines the claim to exemption under S. 4 (3) (vi) of the Income-tax ActWhat is exempted is not the consideration paid for meeting the expenditure incurred or to be incurred in the performance of the duties of an office or employment the exemption operates only in respect of a special allowance or benefit specifically granted to meet expenses wholly and necessarily incurred in the discharge of the duties of the office or employment9. The expression "incurred" means for reasons already set out incurred or to be incurred. But that has no bearing on the question whether the unexpended surplus in the hands of the employee is taxable. And we do not feel impressed by the second consideration. The allowance may be in respect of a period longer than the accounting year or which runs into the succeeding accounting year or years. But on that account the whole receipt reduced by the expenses actually incurred in the year of account is not liable to be brought to tax. If it appears from a review of the circumstances that a special allowance is made for a period longer than the year of account or that the period covered by the grant of a special allowance extends beyond the close of the account year, it would, ill our judgment, be the duty of the Income-tax Officer to determine the amount allowed in respect of the year of account in which the expenditure has been incurred and the difference between the amount so determined and the amount actually expended would alone be brought to tax10. It may be noted that the Parliament has by the Finance Act, 1955, with effect from April 1, 1955, recast Cl. (vi) of S. 4 (3) of the Income-tax Act, 1922 and has expressly provided that the special allowance granted to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit to the extent to which such expenses are actually incurred for that purpose, was exempt from tax. The Legislature, by the amendment made it dear that only the expenses actually incurred by the assessee will be exempted under S. 4 (3) (vi). But the principle that an amount granted to cover expenses to be incurred for a period which extends beyond the year of account in which the grant is received will be allocated between the year of account and the period outside the year of account will apply to the Act as amended11. There is no doubt that the selling agent under the agreement with the principals holds an employment for profit. No argument to the contrary was advanced before us. It is unnecessary therefore to consider the elaborate judgment of the High Court on the question whether the selling agent holds an office within the meaning of S. 4 (3) (vi) of the Act. | 1 | 2,385 | 716 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of the grantee acquires for the purpose of the Income-tax Act the character of additional remuneration. 7. We are unable to agree with the decision of the Bombay High Court in Tejaji Farasram Kharawallas case, (1948) 16 ITR 260 : (AIR 1949 Bom 34 ) that the object with which the grant is made by the employer determines the claim to exemption under S. 4 (3) (vi) of the Income-tax Act. The observations made by Chagla, C. J.; at p. 267 (of ITR) : (at p. 35 of AIR) that:"what is emphasized in this sub-clause [S. 4 (3) (vi)] is the purpose of the grant, the object with which the grant was made.* * * Once it is established that the grant was for that particular purpose, it is no longer necessary for the assessee to prove that in fact he expended that grant for the purpose for which it was given. He may spend more, or he may spend less, but qua that grant which is given for a particular purpose he is entitled to the exemption", do not, in our Judgment give due effect to the key words `to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit." What is exempted is not the consideration paid for meeting the expenditure incurred or to be incurred in the performance of the duties of an office or employment the exemption operates only in respect of a special allowance or benefit specifically granted to meet expenses wholly and necessarily incurred in the discharge of the duties of the office or employment. 8. The judgment of the Allahabad High Court in Commissioner of Income-tax U. P. v. Sharma and Co., Kanpur, 1965-57 ITR 470 : (AIR 1965 All 277 ) and especially the observations of Pathak, J., on which reliance was placed by counsel for the Company may also be referred to. In Sharma and Companys case, 1965-57 ITR 470 : (AIR 1965 All 277 ) the assessee firm which was the sole selling agent of a "cotton mill", received a sum exceeding Rs. 67,000/- from the owners of the mills for the purpose of meeting the expenses in connection with the management of a retail cloth shop on behalf of the mill and actually spent only Rupees 12,641/-. The claim of the firm that it was entitled to exemption from liability to pay tax under S. 4 (3) (vi) of the Act (before it was amended in 1955) even in respect of the balance retained by it was upheld by the High Court of Allahabad. Pathak, J., observed that S. 4 (3) (vi), as it then stood, required the Income-tax Officer to enquire whether the purpose of the grant was covered by the language of the clause, and he was not concerned to determine whether the amount granted was actually expended by the recipient. The learned Judge in so holding was impressed by two considerations : that the expression "incurred" means incurred already, or to be incurred in future and that income-tax being an annual tax in a case where the allowance is an ad hoc allowance which is to cover a period longer than or ending after the year of account, or is a periodical allowance, the Income-tax Officer may under the Act exempt expenditure incurred in the year of account and no more, and thereby the intention of the employer would be wholly frustrated and the employee may be called upon to pay tax on a receipt which is not his income. 9. The expression "incurred" means for reasons already set out incurred or to be incurred. But that has no bearing on the question whether the unexpended surplus in the hands of the employee is taxable. And we do not feel impressed by the second consideration. The allowance may be in respect of a period longer than the accounting year or which runs into the succeeding accounting year or years. But on that account the whole receipt reduced by the expenses actually incurred in the year of account is not liable to be brought to tax. If it appears from a review of the circumstances that a special allowance is made for a period longer than the year of account or that the period covered by the grant of a special allowance extends beyond the close of the account year, it would, ill our judgment, be the duty of the Income-tax Officer to determine the amount allowed in respect of the year of account in which the expenditure has been incurred and the difference between the amount so determined and the amount actually expended would alone be brought to tax. 10. It may be noted that the Parliament has by the Finance Act, 1955, with effect from April 1, 1955, recast Cl. (vi) of S. 4 (3) of the Income-tax Act, 1922 and has expressly provided that the special allowance granted to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit to the extent to which such expenses are actually incurred for that purpose, was exempt from tax. The Legislature, by the amendment made it dear that only the expenses actually incurred by the assessee will be exempted under S. 4 (3) (vi). But the principle that an amount granted to cover expenses to be incurred for a period which extends beyond the year of account in which the grant is received will be allocated between the year of account and the period outside the year of account will apply to the Act as amended. 11. There is no doubt that the selling agent under the agreement with the principals holds an employment for profit. No argument to the contrary was advanced before us. It is unnecessary therefore to consider the elaborate judgment of the High Court on the question whether the selling agent holds an office within the meaning of S. 4 (3) (vi) of the Act.
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It would, therefore, be reasonable to hold that the allowance granted to meet the expenses wholly and necessarily incurred or to be incurred in the performance of the duties of the office or employment of the grantee alone qualifies for exemption under the Act, and any surplus remaining in the hands of the grantee after meeting the expenses does not bear the character of the allowance for meeting expenses but far performing the duties of the office or employment. This would be so even if the employer has disabled himself from demanding refund of the amount not expended for meeting the expenses incurred or to be incurred in the performance of the duties of an office or employment of profit, and the surplus remaining in the hands of the grantee acquires for the purpose of the Income-tax Act the character of additional remuneration7. We are unable to agree with the decision of the Bombay High Court in Tejaji Farasram Kharawallas case, (1948) 16 ITR 260 : (AIR 1949 Bom 34 ) that the object with which the grant is made by the employer determines the claim to exemption under S. 4 (3) (vi) of the Income-tax ActWhat is exempted is not the consideration paid for meeting the expenditure incurred or to be incurred in the performance of the duties of an office or employment the exemption operates only in respect of a special allowance or benefit specifically granted to meet expenses wholly and necessarily incurred in the discharge of the duties of the office or employment9. The expression "incurred" means for reasons already set out incurred or to be incurred. But that has no bearing on the question whether the unexpended surplus in the hands of the employee is taxable. And we do not feel impressed by the second consideration. The allowance may be in respect of a period longer than the accounting year or which runs into the succeeding accounting year or years. But on that account the whole receipt reduced by the expenses actually incurred in the year of account is not liable to be brought to tax. If it appears from a review of the circumstances that a special allowance is made for a period longer than the year of account or that the period covered by the grant of a special allowance extends beyond the close of the account year, it would, ill our judgment, be the duty of the Income-tax Officer to determine the amount allowed in respect of the year of account in which the expenditure has been incurred and the difference between the amount so determined and the amount actually expended would alone be brought to tax10. It may be noted that the Parliament has by the Finance Act, 1955, with effect from April 1, 1955, recast Cl. (vi) of S. 4 (3) of the Income-tax Act, 1922 and has expressly provided that the special allowance granted to meet expenses wholly and necessarily incurred in the performance of the duties of an office or employment of profit to the extent to which such expenses are actually incurred for that purpose, was exempt from tax. The Legislature, by the amendment made it dear that only the expenses actually incurred by the assessee will be exempted under S. 4 (3) (vi). But the principle that an amount granted to cover expenses to be incurred for a period which extends beyond the year of account in which the grant is received will be allocated between the year of account and the period outside the year of account will apply to the Act as amended11. There is no doubt that the selling agent under the agreement with the principals holds an employment for profit. No argument to the contrary was advanced before us. It is unnecessary therefore to consider the elaborate judgment of the High Court on the question whether the selling agent holds an office within the meaning of S. 4 (3) (vi) of the Act.
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K. G. Khosla & Co Vs. Deputy Commissioner Of Commercial Taxies | goods before the goods have crossed the customs frontiers of India." 9. Section 3 of the Act, which deals with inter-State trade and commerce may also be set out as it employs the same terminology and has been interpreted by this Court. Section 3 reads:"A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another." It is not necessary to set out the two Explanations to S. 3. 10. It seems to us that the expression "occasions the movement of goods" occurring in S. 3(a) and S. 5(2) must have the same meaning. In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar,1960-11 STC 655 : (AIR 1961 SC 65 ), Shah, J., speaking for the majority, interpreted S. 3 as follows:"In our view, therefore, within Cl. (b) of S. 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto: Cl. (a) of S. 3 covers sales, other than those included in Cl. (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State." These observations of Shah, J., were cited with approval by this Court in Cement Marketing Co. of India (Pvt) Ltd. v. State of Mysore, 1963-14 STC 175 : (AIR 1963 SC 980 ). This case, it is true, was not dealing with the Central Sales Tax Act but the Court was dealing with the Central Sales Tax Act but the Court was dealing with a similar question arising under Art. 286 of the Constitution, before its amendment. 11. But the same Bench, in dealing with a case arising under the Act (State Trading Corporation of India Ltd. v. State of Mysore, 1963-14 STC 188: (AIR 1963 SC 548 ) again approved of the observations in Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ) Sarkar J., observed thus:"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition? In 1960-11 STC 655 : (AIR 1961 SC 65 ) it was held that a sale occasions the movement of goods from one State to another within S. 3 (a) of the Central Sales Tax Act, when the movement "is the result of a covenant or incident of the contract of sale." That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale." This Court then, on the facts of the case, found that the movement of cement from another State into Mysore was the result of a covenant in the contract of sale or incident of such contract. This Court did not go into the question as to whether the property had passed before the movement of the goods or not, and this was because according to the decision in 1960-11 STC 655 : (AIR 1961 SC 65 ) it did not matter whether the property passed in one State or the other. Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ), was again followed by this Court in Singareni Collieries Co. v. Commissioner of Commercial Taxes, Hyderabad, Civil Appeals Nos. 950-952 of 1963 dated 12-10-1965: (AIR 1966 SC 563 ). 12. The learned counsel for the respondent, Mr. A. Ranganadham Chetty, invited us to hold that the observations of Shah J., in Tata Iron and Steel Co case, 1960-11 STC 655 : (AIR 1961 SC 65 ), were obiter, and to consider the question afresh. We are unable to reopen the question at this stage. Shah, J., was interpreting S. 3 of the Act, and although the Court was principally concerned with the interpretation of S. 3 (b), it was necessary to consider the interpretation of S. 3 (a) in order to arrive at the correct interpretation of S. 3 (b). Further these observations were approved in 1963-14 STC 175 : (AIR 1963 SC 980 ): 1963-14 STC 188: (AIR 1963 SC 548 ) and Civil Appeals Nos. 950-952 of 1963 dated 12-10-1965: (AIR 1966 SC 563 ). In the State Trading Corporation case, 1963-14 STC 188: (AIR 1963 SC 548 ), in so far as the assessment for the assessment year 1957-58 was concerned, this Court applied the principles laid down in Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ). Accordingly we hold that the High Court was wrong in holding that before a sale could be said to have occasioned import it is necessary that the sale should have preceded the import. 13. The next question that arises is whether the movement of axle-box bodies from Belgium into Madras was the result of a covenant in the contract of sale or an incident of such contract. It seem to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within S. 5(2) of the Act, and are, therefore, exempt from taxation. 14. | 1[ds]We see no force in this objection. It is common ground that the Madras High Court had at the relevant time consistently taken the view that no application for leave to appeal to Supreme Court lay before the High Court in matters involving revenue. In these circumstances we dispense with the requirement of O. XIII, R. 2 of the Supreme Court Rules, and overrule the objection. The second preliminary objection raised by him was that the assessee should have filed four appeals and not two appeals because there were four revision petitions before the High Court. We see no force in this objection also. Two revisions were filed by the assessee and two by the State in respect of two assessment orders and they were disposed of by one common judgment. The subject-matter of the four revisions were two assessments, one under the Madras General Sales Tax Act and the other under the Central Sales Tax Act. In our opinion, the assessee was quite right in filing two appeals before this CourtIt seem to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within S. 5(2) of the Act, and are, therefore, exempt from taxation. | 1 | 2,881 | 301 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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goods before the goods have crossed the customs frontiers of India." 9. Section 3 of the Act, which deals with inter-State trade and commerce may also be set out as it employs the same terminology and has been interpreted by this Court. Section 3 reads:"A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another." It is not necessary to set out the two Explanations to S. 3. 10. It seems to us that the expression "occasions the movement of goods" occurring in S. 3(a) and S. 5(2) must have the same meaning. In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar,1960-11 STC 655 : (AIR 1961 SC 65 ), Shah, J., speaking for the majority, interpreted S. 3 as follows:"In our view, therefore, within Cl. (b) of S. 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto: Cl. (a) of S. 3 covers sales, other than those included in Cl. (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State." These observations of Shah, J., were cited with approval by this Court in Cement Marketing Co. of India (Pvt) Ltd. v. State of Mysore, 1963-14 STC 175 : (AIR 1963 SC 980 ). This case, it is true, was not dealing with the Central Sales Tax Act but the Court was dealing with the Central Sales Tax Act but the Court was dealing with a similar question arising under Art. 286 of the Constitution, before its amendment. 11. But the same Bench, in dealing with a case arising under the Act (State Trading Corporation of India Ltd. v. State of Mysore, 1963-14 STC 188: (AIR 1963 SC 548 ) again approved of the observations in Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ) Sarkar J., observed thus:"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition? In 1960-11 STC 655 : (AIR 1961 SC 65 ) it was held that a sale occasions the movement of goods from one State to another within S. 3 (a) of the Central Sales Tax Act, when the movement "is the result of a covenant or incident of the contract of sale." That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale." This Court then, on the facts of the case, found that the movement of cement from another State into Mysore was the result of a covenant in the contract of sale or incident of such contract. This Court did not go into the question as to whether the property had passed before the movement of the goods or not, and this was because according to the decision in 1960-11 STC 655 : (AIR 1961 SC 65 ) it did not matter whether the property passed in one State or the other. Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ), was again followed by this Court in Singareni Collieries Co. v. Commissioner of Commercial Taxes, Hyderabad, Civil Appeals Nos. 950-952 of 1963 dated 12-10-1965: (AIR 1966 SC 563 ). 12. The learned counsel for the respondent, Mr. A. Ranganadham Chetty, invited us to hold that the observations of Shah J., in Tata Iron and Steel Co case, 1960-11 STC 655 : (AIR 1961 SC 65 ), were obiter, and to consider the question afresh. We are unable to reopen the question at this stage. Shah, J., was interpreting S. 3 of the Act, and although the Court was principally concerned with the interpretation of S. 3 (b), it was necessary to consider the interpretation of S. 3 (a) in order to arrive at the correct interpretation of S. 3 (b). Further these observations were approved in 1963-14 STC 175 : (AIR 1963 SC 980 ): 1963-14 STC 188: (AIR 1963 SC 548 ) and Civil Appeals Nos. 950-952 of 1963 dated 12-10-1965: (AIR 1966 SC 563 ). In the State Trading Corporation case, 1963-14 STC 188: (AIR 1963 SC 548 ), in so far as the assessment for the assessment year 1957-58 was concerned, this Court applied the principles laid down in Tata Iron and Steel Co. case, 1960-11 STC 655 : (AIR 1961 SC 65 ). Accordingly we hold that the High Court was wrong in holding that before a sale could be said to have occasioned import it is necessary that the sale should have preceded the import. 13. The next question that arises is whether the movement of axle-box bodies from Belgium into Madras was the result of a covenant in the contract of sale or an incident of such contract. It seem to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within S. 5(2) of the Act, and are, therefore, exempt from taxation. 14.
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### Explanation:
We see no force in this objection. It is common ground that the Madras High Court had at the relevant time consistently taken the view that no application for leave to appeal to Supreme Court lay before the High Court in matters involving revenue. In these circumstances we dispense with the requirement of O. XIII, R. 2 of the Supreme Court Rules, and overrule the objection. The second preliminary objection raised by him was that the assessee should have filed four appeals and not two appeals because there were four revision petitions before the High Court. We see no force in this objection also. Two revisions were filed by the assessee and two by the State in respect of two assessment orders and they were disposed of by one common judgment. The subject-matter of the four revisions were two assessments, one under the Madras General Sales Tax Act and the other under the Central Sales Tax Act. In our opinion, the assessee was quite right in filing two appeals before this CourtIt seem to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within S. 5(2) of the Act, and are, therefore, exempt from taxation.
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A.B. Abdul Kadir & Ors Etc Vs. State Of Kerala | is unquestionably within the legislative competence of the State Legislature in view of entry 62 in List II of the Seventh Schedule to the Constitution. As such, it cannot be said that the impugned Act is a colourable piece of legislation. In the case of Jaora Sugar Mills (P) Ltd. access was levied under the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958 on sugarcane. This Court in the earlier case of Diamond Sugar Mills([1961] 3 S.C .R 242.) had held that such a levy was not valid. Following the above decision the Madhya Pradesh High Court struck down section 23 which was t he charging section of the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958. There were similar Acts in- several other States which suffered from the same infirmity and to meet that situation, Parliament passed the Sugarcane Cess (Validation) Act, 1961. The Act made valid by section 3 all the assessments and collections made before its commencement under the various State Acts and laid down that all the provisions of the State Acts as well as the relevant notifications, rules, etc., made under the State Acts would be treated as part of section 3. It was further provided that the said section shall be deemed to have existed at all material times when the cess was imposed, assessed and collected under the State Acts. The appellant, a sugar factory, was asked to pay the cess for the years 1959-60 and 1960-61. The appellant challenged the levy. The High Court having dismissed the petition, the appellant came to this Court. Among the various contentions which were advanced on behalf of the appellant in the case were: (1) What the validation of the Act had done was to attempt to cure the legislative incompetence of the State Legislatures by validating State Acts which were invalid on the ground of absence of legislative competence in the respective State Legislatures; (2) Parliament lrad passed the Act in question not for the purpose of levying a cess of its own , but for the purpose of enabling the respective States to retain the amounts which they had illegally collected. The Act was, therefore, a colourable piece of legislation; and (3) The Act had not been passed for the purposes of the Union of India and the recoveries of cesses which were retrospectively authorised by it were not likely to go into the Consolidated Fund of India. The Constitution Bench of this Court speaking through Gajendragadkar CJ. repelled all the above contentions. It was held by this Court that if collections are made under statutory provision which are invalid because they deal with a topic outside the legislative competence of the State Legislature, the Parliament can in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character into collections made under its own statute operating retrospectively. So far as the present case is concerned, we have already pointed out above that it was within the competence of the State Legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. The State Legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. The fact that the validation of the levy entailed converting the character of the collection from an impermissible excise duty into permissible luxury tax would not render it unconstitutional. The only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the State Legislature should be competent to enact a law for recovery of luxury tax. Both these conditions as stated above are satisfied.As regards the power of the legislature to give retrospective operation to a tax legislation, we may also refer to the case of Rai Ramkrishna &Ors. v. State of Bihar ([1964] 1 S.C.R 897.) wherein it was held that where the legislature can make a valid law, it can provide not only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. The legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be `H invalid. It was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304(b), The test of length of time covered by the retrospective operation could nob by itself be treated as decisive. Again, in the case of Epari Chinna Krishna Moorthy, Proprie tor, Epari Chinna Moorthy &Sons, Berhampur, Orissa v. State of Orissa([1964] 7 S.C.R. 185.) the Constitution Bench of this Court repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in some cases.19. As a result of the above, we would hold that the impugned provisions are protected by article 304(b) of the Constitution.20. Lastly, it has been argued that section 6 of the impugned Act is invalid because it provides for payment of an amount which had been refunded in pursuance of the order of this Court. Section 6 is thus stated to be an encroachment by the legislature upon a judicial field. This contention, in our opinion, is bereft of force. If a provision regarding the levy of luxury tax is within the competence of the State Legislature, the said Legislature would be well within its competence to enact a law for recovery of an amount which, though already refunded to a party, partakes o f the nature of luxury tax in the light of that law. If an amount can answer to the description of luxury tax, there would be no legal impediment to recovering the same as luxury tax, even though initially it was recovered or sought to be re covered as something different from luxury tax. | 0[ds]The above submission of Mr. Patel, in our opinion, is wellwe are concerned with is the constitutional validity of the Kerala Act 9 of 1964. This Act was enacted subsequent to the above decision of this Court rendered on January 24, 1962. No question relating to the validity of the above mentioned Act in the very nature of things could arise at the time of the earlier decision in 1962. We, therefore, are of the view that the judgment dated January 24, 1962 of this Court does not operate as res judicate regarding the points of controversy with which we are concerned in these appeals.It has next been argued on behalf of the appellants that the levy for the licence fee for stocking and vending of tobacco, even though described as luxury tax in charging section 3 of the Act, is in reality and substance an excise duty on tobacco. Excise duty on tobacco under entry 84 of List I of the Seventh Schedule to the Constitution can only be levied by Parliament and, as such, according to the learned counsel for the appellants, the State Legislature was not competent to enact the impugned Act 9 of 1964. This; contention. in our opinion, is equally devoid of force. Excise duty, it is now well-settled, is a tax on articles produced or manufactured in the taxing country. Generally speaking, the tax is on the manufacturer or the producer, yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture orfact that the levy of excise duty is in the form of licence fee would not detract from the fact that the levy relates to excise duty. It is, however, essential that such levy should be linked with production or manufacture of the excisable article. The recovery of licence fee in such an event would be one of the modes of levy of the excise duty. Where, however, the levy imposed or tax has no nexus with the manufacture or production of an article, the impost or tax cannot be regarded to be one in the nature of excisethat the provisions of the Act fall under entry 84 of List I of the Seventh Schedule to the Constitution must, therefore, be held to be bereft of force.Perusal of the rules shows that it was imperative for the A class licensees to pay the licence fee in advance before they could bring tobacco within the taxable territory. We agree with the learned Judges of the High Court that such levy directly impedes the free flow of trade and as such is violative of article 301 of theis no doubt true that the assent of the President was given subsequent to the passing of the Bill by the legislature but that fact would not affect the validity of the impugned Act in view of the provisions of article 255 of theis well-settled that when power is conferred upon the legislature to levy tax, that power must be widely construed; it must include the power to impose a tax and select the articles or commodities for the exercise of such power; it must likewise include the power to fix the rate and prescribe the machinery for the recovery of tax. This power also gives jurisdiction to the legislature to make such provisions as, in its Opinion, would be necessary to prevent the evasion of theagree with Mr. Krishnamurthy Iyer that the onus of showing that the restrictions on the freedom of trade, commerce or intercourse in the public interest are reasonable, is upon the State. It is also true that no effort was made in the affidavit filed on behalf of the State in this case to show as to how the restrictions were reasonable, but that fact would not necessarily lead the court to hold that the restrictions are unreasonable. If the court on consideration of the totality of facts finds that the restrictions are reasonable, the court would uphold the same in spite of lack of details in the affidavit filed on behalf of the State. In judging the question of reasonableness of restriction in the present case, we must bear in mind that the levy of luxury tax relates to tobacco, the consumption of which involves health hazard. Regulation of the sale and stocking of an article like tobacco which has a health hazard and is considered to be an article of luxury by imposing a licence fee for the same, in our opinion, is a permissible restriction in public interest within article 304(b) of the Constitution. The material on record shows that except for cultivation of tobacco on experimental basis, no tobacco is grown in the area with which we are concerned . The levy of luxury tax is bound to result in raising the price of tobacco in the area of erstwhile States of Travancore and Cochin. Once of the likely effects of the enhancement of the price of a commodity entailing health hazards is to lower its consumption.The fact that there is no commercial production of tobacco in the area with which we are concerned would show that there is no discrimination between tobacco brought from outside that area and the locally grown tobacco because in fact there is no tobacco of the latter category, except that grown on experimentalcontention, in our opinion, is not well founded. The fact that the operation of the Act is confined to a particular area and does not extend to the entire State is due to historical reasons. The object of the Act was to validate the recoveries alreadyare unable to accede to the submission that this Court lost sight of the fact that the Act was not applicable to the Telengana area in holding that its provisions were protected by article 304(b) of the Constitution.It is also true that the levy of tax relates only to the period from August 17, 1950 to December 31, 1957, but that too was due to the historical reason that the licence fee had been realised only during that period and the object of the impugned Act was to validate the recovery alreadyabove argument has a seeming plausibility, but, on deeper examination, we find it to be notabove principle would, however, have no application where, as in the present case, what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. The impugned provisions under which that levy is sought to be made with a retrospective effect have nothing to do, as already pointed out above, with production and manufacture of tobacco. The levy is sought to be made as luxury tax which is within the competence of the State Legislature and not as excise duty which is beyond the legislative competence of the State Legislature. If the levy in question can be justified under a provision which is within the legislative competence of the State Legislature, the levy shall be held to be validly imposed and cannot be considered to bea challenge to the validity of a legal enactment is made on the ground that it is a colourable piece of legislation, what has to be proved to the satisfaction of the court is that though the Act ostensibly is within the legislative competence of the legislature in question, in substance and reality it covers field which is outside its legislative competence. In the present case we find that in enacting the impugned provisions, the State Legislature, as already pointed out above, has exercised a power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. The enactment of a law for levying luxury tax is unquestionably within the legislative competence of the State Legislature in view of entry 62 in List II of the Seventh Schedule to the Constitution. As such, it cannot be said that the impugned Act is a colourable piece offar as the present case is concerned, we have already pointed out above that it was within the competence of the State Legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. The State Legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. The fact that the validation of the levy entailed converting the character of the collection from an impermissible excise duty into permissible luxury tax would not render it unconstitutional. The only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the State Legislature should be competent to enact a law for recovery of luxury tax. Both these conditions as stated above are satisfied.As regards the power of the legislature to give retrospective operation to a tax legislation, we may also refer to the case of Rai Ramkrishna &Ors. v. State of Bihar ([1964] 1 S.C.R 897.) wherein it was held that where the legislature can make a valid law, it can provide not only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. The legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be `H invalid. It was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304(b), The test of length of time covered by the retrospective operation could nob by itself be treated as decisive. Again, in the case of Epari Chinna Krishna Moorthy, Proprie tor, Epari Chinna Moorthy &Sons, Berhampur, Orissa v. State of Orissa([1964] 7 S.C.R. 185.) the Constitution Bench of this Court repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in somea result of the above, we would hold that the impugned provisions are protected by article 304(b) of thecontention, in our opinion, is bereft of force. If a provision regarding the levy of luxury tax is within the competence of the State Legislature, the said Legislature would be well within its competence to enact a law for recovery of an amount which, though already refunded to a party, partakes o f the nature of luxury tax in the light of that law. If an amount can answer to the description of luxury tax, there would be no legal impediment to recovering the same as luxury tax, even though initially it was recovered or sought to be re covered as something different from luxury tax. | 0 | 8,516 | 1,929 | ### Instruction:
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is unquestionably within the legislative competence of the State Legislature in view of entry 62 in List II of the Seventh Schedule to the Constitution. As such, it cannot be said that the impugned Act is a colourable piece of legislation. In the case of Jaora Sugar Mills (P) Ltd. access was levied under the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958 on sugarcane. This Court in the earlier case of Diamond Sugar Mills([1961] 3 S.C .R 242.) had held that such a levy was not valid. Following the above decision the Madhya Pradesh High Court struck down section 23 which was t he charging section of the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958. There were similar Acts in- several other States which suffered from the same infirmity and to meet that situation, Parliament passed the Sugarcane Cess (Validation) Act, 1961. The Act made valid by section 3 all the assessments and collections made before its commencement under the various State Acts and laid down that all the provisions of the State Acts as well as the relevant notifications, rules, etc., made under the State Acts would be treated as part of section 3. It was further provided that the said section shall be deemed to have existed at all material times when the cess was imposed, assessed and collected under the State Acts. The appellant, a sugar factory, was asked to pay the cess for the years 1959-60 and 1960-61. The appellant challenged the levy. The High Court having dismissed the petition, the appellant came to this Court. Among the various contentions which were advanced on behalf of the appellant in the case were: (1) What the validation of the Act had done was to attempt to cure the legislative incompetence of the State Legislatures by validating State Acts which were invalid on the ground of absence of legislative competence in the respective State Legislatures; (2) Parliament lrad passed the Act in question not for the purpose of levying a cess of its own , but for the purpose of enabling the respective States to retain the amounts which they had illegally collected. The Act was, therefore, a colourable piece of legislation; and (3) The Act had not been passed for the purposes of the Union of India and the recoveries of cesses which were retrospectively authorised by it were not likely to go into the Consolidated Fund of India. The Constitution Bench of this Court speaking through Gajendragadkar CJ. repelled all the above contentions. It was held by this Court that if collections are made under statutory provision which are invalid because they deal with a topic outside the legislative competence of the State Legislature, the Parliament can in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character into collections made under its own statute operating retrospectively. So far as the present case is concerned, we have already pointed out above that it was within the competence of the State Legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. The State Legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. The fact that the validation of the levy entailed converting the character of the collection from an impermissible excise duty into permissible luxury tax would not render it unconstitutional. The only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the State Legislature should be competent to enact a law for recovery of luxury tax. Both these conditions as stated above are satisfied.As regards the power of the legislature to give retrospective operation to a tax legislation, we may also refer to the case of Rai Ramkrishna &Ors. v. State of Bihar ([1964] 1 S.C.R 897.) wherein it was held that where the legislature can make a valid law, it can provide not only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. The legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be `H invalid. It was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304(b), The test of length of time covered by the retrospective operation could nob by itself be treated as decisive. Again, in the case of Epari Chinna Krishna Moorthy, Proprie tor, Epari Chinna Moorthy &Sons, Berhampur, Orissa v. State of Orissa([1964] 7 S.C.R. 185.) the Constitution Bench of this Court repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in some cases.19. As a result of the above, we would hold that the impugned provisions are protected by article 304(b) of the Constitution.20. Lastly, it has been argued that section 6 of the impugned Act is invalid because it provides for payment of an amount which had been refunded in pursuance of the order of this Court. Section 6 is thus stated to be an encroachment by the legislature upon a judicial field. This contention, in our opinion, is bereft of force. If a provision regarding the levy of luxury tax is within the competence of the State Legislature, the said Legislature would be well within its competence to enact a law for recovery of an amount which, though already refunded to a party, partakes o f the nature of luxury tax in the light of that law. If an amount can answer to the description of luxury tax, there would be no legal impediment to recovering the same as luxury tax, even though initially it was recovered or sought to be re covered as something different from luxury tax.
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in the area with which we are concerned . The levy of luxury tax is bound to result in raising the price of tobacco in the area of erstwhile States of Travancore and Cochin. Once of the likely effects of the enhancement of the price of a commodity entailing health hazards is to lower its consumption.The fact that there is no commercial production of tobacco in the area with which we are concerned would show that there is no discrimination between tobacco brought from outside that area and the locally grown tobacco because in fact there is no tobacco of the latter category, except that grown on experimentalcontention, in our opinion, is not well founded. The fact that the operation of the Act is confined to a particular area and does not extend to the entire State is due to historical reasons. The object of the Act was to validate the recoveries alreadyare unable to accede to the submission that this Court lost sight of the fact that the Act was not applicable to the Telengana area in holding that its provisions were protected by article 304(b) of the Constitution.It is also true that the levy of tax relates only to the period from August 17, 1950 to December 31, 1957, but that too was due to the historical reason that the licence fee had been realised only during that period and the object of the impugned Act was to validate the recovery alreadyabove argument has a seeming plausibility, but, on deeper examination, we find it to be notabove principle would, however, have no application where, as in the present case, what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. The impugned provisions under which that levy is sought to be made with a retrospective effect have nothing to do, as already pointed out above, with production and manufacture of tobacco. The levy is sought to be made as luxury tax which is within the competence of the State Legislature and not as excise duty which is beyond the legislative competence of the State Legislature. If the levy in question can be justified under a provision which is within the legislative competence of the State Legislature, the levy shall be held to be validly imposed and cannot be considered to bea challenge to the validity of a legal enactment is made on the ground that it is a colourable piece of legislation, what has to be proved to the satisfaction of the court is that though the Act ostensibly is within the legislative competence of the legislature in question, in substance and reality it covers field which is outside its legislative competence. In the present case we find that in enacting the impugned provisions, the State Legislature, as already pointed out above, has exercised a power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. The enactment of a law for levying luxury tax is unquestionably within the legislative competence of the State Legislature in view of entry 62 in List II of the Seventh Schedule to the Constitution. As such, it cannot be said that the impugned Act is a colourable piece offar as the present case is concerned, we have already pointed out above that it was within the competence of the State Legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. The State Legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. The fact that the validation of the levy entailed converting the character of the collection from an impermissible excise duty into permissible luxury tax would not render it unconstitutional. The only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the State Legislature should be competent to enact a law for recovery of luxury tax. Both these conditions as stated above are satisfied.As regards the power of the legislature to give retrospective operation to a tax legislation, we may also refer to the case of Rai Ramkrishna &Ors. v. State of Bihar ([1964] 1 S.C.R 897.) wherein it was held that where the legislature can make a valid law, it can provide not only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. The legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be `H invalid. It was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304(b), The test of length of time covered by the retrospective operation could nob by itself be treated as decisive. Again, in the case of Epari Chinna Krishna Moorthy, Proprie tor, Epari Chinna Moorthy &Sons, Berhampur, Orissa v. State of Orissa([1964] 7 S.C.R. 185.) the Constitution Bench of this Court repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in somea result of the above, we would hold that the impugned provisions are protected by article 304(b) of thecontention, in our opinion, is bereft of force. If a provision regarding the levy of luxury tax is within the competence of the State Legislature, the said Legislature would be well within its competence to enact a law for recovery of an amount which, though already refunded to a party, partakes o f the nature of luxury tax in the light of that law. If an amount can answer to the description of luxury tax, there would be no legal impediment to recovering the same as luxury tax, even though initially it was recovered or sought to be re covered as something different from luxury tax.
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SHANTI DEVI ALIAS SHANTI MISHRA Vs. UNION OF INDIA & ORS | The Union of India and Ors., 2015(2) PLJR 256. The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context, the Division Bench in paragraphs 63, 64 and 66 laid down following:- 63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma vs. Union of India, reported in (2014) 9 SCC 329 , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Courts jurisdiction. 64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna. 66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna. 28. The above judgment of the same High Court was relevant in the facts of the present case, which judgment although was delivered prior in time, but was not noticed by the learned Single Judge as well as the Division Bench. 29. Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner. 30. Another submission which has been advanced by learned counsel for the respondent Nos. 1 to 3 is that the writ petition was rightly dismissed on the principle of forum non conveniens. Forum non conveniens has been defined by P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd Edition in following words:- The principle that a case should be heard in a Court of the place where parties, witnesses, and evidence are primarily located. 31. Blacks Law Dictionary defines forum conveniens in following words:- The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. 32. This Court in Kusum Ingots & Alloys Ltd. (supra) has also referred to principle of forum conveniens. Following was stated in paragraph 30:- Forum conveniens 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga vs. Dewan Jagbir Sawhney [AIR 1941 Cal 670 ], Madanlal Jalan vs. Madanlal [AIR 1949 Cal 495 ], Bharat Coking Coal Ltd. vs. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. vs. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. vs. Union of India [AIR 1994 Del 126 ]. 33. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance. | 1[ds]There is no dispute between the parties that the pension of late Shri B.N. Mishra was stopped from November, 2013 and the Writ Petition No.5999 of 2014 was filed after stoppage of pension, which he was getting for the last 08 years. Further by letter dated 06.11.2013, petitioner was also directed to return the amount of Rs.8,09,268/-, which was amount of pension he received in his bank account in State Bank of India, Darbhanga from May, 2005.13. We may first notice the order of learned Single Judge dismissing the writ petition on the ground of lack of territorial jurisdiction dated 04.08.2017. Paragraph 5 of the judgment gives reasons for dismissing the writ petition. In paragraph 5, mainly two reasons have been given by the learned Single Judge for dismissing the writ petition; (i) Earlier Writ Petition No.13955 of 2006 for grant of retiral benefits was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction. The petitioner did not move in LPA or before the Supreme Court; and (ii) When the petition of payment of retiral benefits is pending before the Jharkhand High Court, the petitioner should have filed the writ petition before the same High court against the order of stoppage of pension as the payment of pension is also a part of retiral benefits.15. The learned Single Judge did not correctly consider the facts and pleadings in Writ Petition No. 13955 of 2006 and Writ Petition No. 5999 of 2014. The earlier writ petition filed by the petitioner in the year 2006 was where petitioner had prayed for refund of wrongly withheld/illegally detained amount of Rs.1,33,559/-. When the earlier writ petition was filed, there was no issue of non-payment of pension or stoppage of pension since the pension had been started w.e.f. May, 2005. The subsequent Writ Petition No. 5999 of 2014 was filed when payment of pension after 08 years was stopped and the petitioner was directed to return the amount of Rs.8,09,268/-. The cause of action for filing Writ Petition No.5999 of 2014 was entirely different. The learned Single Judge committed error in holding that in view of dismissal of the earlier writ petition on the ground of lack of territorial jurisdiction, the Writ Petition is also dismissed.16. The second reason given by learned Single Judge that petitioner ought to have filed the writ petition before the Jharkhand High Court also does not commend us. For a retiree, who is settled in Darbhanga and receiving pension at District Darbhhanga, it cannot be said that it was necessary for him to file his petition in the Jharkhand High Court where his earlier writ petition was pending. The subject matter of the earlier writ petition was entirely different and the dismissal of the writ petition does not preclude the petitioner to file subsequent writ petition in the same High Court.17. The Division Bench of the High Court did not advert to the facts or pleadings of the writ petition and only after quoting paragraphs 4 and 5 of the judgment of the learned Single Judge dismissed the writ petition without adverting to any issue, which was raised in the LPA by the writ petitioner. Copy of the grounds of LPA No. 1265 of 2017 has been filed as Annexure P-24, which indicate that petitioner has clearly pleaded the relevant facts and specifically stated that cause of action arisen in the year 2013 cannot be subject matter of writ petition filed 08years ago in the year 2006. The main pleadings in the writ petition were not dealt with by the High Court and the High Court having dismissed the writ petition on the ground of lack of territorial jurisdiction,we need to advert as to whether there was any cause of action for entertaining the writ petition by Patna High Court.21. This Court had occasion to consider the cause of action in context of Article 266 of the Constitution and has explained the expression cause of action in large number of cases. We may refer to a Three Judge Bench judgment of this Court in Oil and Natural Gas Commission vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711 where in paragraphs 5 and 6 following has been laid down:-5. Clause (1) of Article 226 begins with a non obstante clause - notwithstanding anything in Article 32 - and provides that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition.6. It is well settled that the expression cause of action means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour vs. Partab Singh [ILR (1889) 16 Cal 98, 102 : 15 IA 156] Lord Watson said:... the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.25. Another judgment which needs to be noticed is Kusum Ingots & Alloys Ltd. vs. Union of India and Anr., (2004) 6 SCC 254 wherein this Court reiterated the meaning of cause of action in paragraph 6. This Court reiterated that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. In paragraph 18, following was held:-18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.27. Learned counsel for the appellant has also placed reliance on a Division Bench judgment of Patna High court in Saryu Singh vs. The Union of India and Ors., 2015(2) PLJR 256.The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context, the Division Bench in paragraphs 63, 64 and 66 laid down following:-63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma vs. Union of India, reported in (2014) 9 SCC 329 , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Courts jurisdiction.64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna.66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna.28. The above judgment of the same High Court was relevant in the facts of the present case, which judgment although was delivered prior in time, but was not noticed by the learned Single Judge as well as the Division Bench.29. Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner32. This Court in Kusum Ingots & Alloys Ltd. (supra) has also referred to principle of forum conveniens. Following was stated in paragraph 30:-30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga vs. Dewan Jagbir Sawhney [AIR 1941 Cal 670 ], Madanlal Jalan vs. Madanlal [AIR 1949 Cal 495 ], Bharat Coking Coal Ltd. vs. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. vs. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. vs. Union of India [AIR 1994 Del 126 ].33. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance. | 1 | 7,334 | 2,534 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
The Union of India and Ors., 2015(2) PLJR 256. The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context, the Division Bench in paragraphs 63, 64 and 66 laid down following:- 63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma vs. Union of India, reported in (2014) 9 SCC 329 , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Courts jurisdiction. 64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna. 66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna. 28. The above judgment of the same High Court was relevant in the facts of the present case, which judgment although was delivered prior in time, but was not noticed by the learned Single Judge as well as the Division Bench. 29. Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner. 30. Another submission which has been advanced by learned counsel for the respondent Nos. 1 to 3 is that the writ petition was rightly dismissed on the principle of forum non conveniens. Forum non conveniens has been defined by P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd Edition in following words:- The principle that a case should be heard in a Court of the place where parties, witnesses, and evidence are primarily located. 31. Blacks Law Dictionary defines forum conveniens in following words:- The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. 32. This Court in Kusum Ingots & Alloys Ltd. (supra) has also referred to principle of forum conveniens. Following was stated in paragraph 30:- Forum conveniens 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga vs. Dewan Jagbir Sawhney [AIR 1941 Cal 670 ], Madanlal Jalan vs. Madanlal [AIR 1949 Cal 495 ], Bharat Coking Coal Ltd. vs. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. vs. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. vs. Union of India [AIR 1994 Del 126 ]. 33. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance.
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action in paragraph 6. This Court reiterated that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. In paragraph 18, following was held:-18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.27. Learned counsel for the appellant has also placed reliance on a Division Bench judgment of Patna High court in Saryu Singh vs. The Union of India and Ors., 2015(2) PLJR 256.The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context, the Division Bench in paragraphs 63, 64 and 66 laid down following:-63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma vs. Union of India, reported in (2014) 9 SCC 329 , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Courts jurisdiction.64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna.66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna.28. The above judgment of the same High Court was relevant in the facts of the present case, which judgment although was delivered prior in time, but was not noticed by the learned Single Judge as well as the Division Bench.29. Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner32. This Court in Kusum Ingots & Alloys Ltd. (supra) has also referred to principle of forum conveniens. Following was stated in paragraph 30:-30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga vs. Dewan Jagbir Sawhney [AIR 1941 Cal 670 ], Madanlal Jalan vs. Madanlal [AIR 1949 Cal 495 ], Bharat Coking Coal Ltd. vs. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. vs. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. vs. Union of India [AIR 1994 Del 126 ].33. As noted above, the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No.4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No.13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance.
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P.M.C. Kunhiraman Nair Vs. C.R. Naganatha Iyer | to the relevant-clauses in the agreement (Ex. B3) dated March 22, 1955 and the Deed of Assignment (Ex. B4), December 11, 1956 on which reliance has been placed by Shri Wariyar, In the agreement (Ex. B3) dated March 22, 1955, executed by respondents Nos. 1 to 5 in favour of T. M. Rama Iyer, it is stated: (4) We will not have any responsibility or objection for your paying the amount due to Kunhiraman Nair after the stipulated period and to take up the management by yourself, pay the rent of the building, conduct the business and if necessary to file a suit against Kunhiraman Nair and get the Company vacated; and to do anything as per your will and pleasure. (5) The Company is not charged by any other liability except the loan mentioned above. The gift deed given to us and the copy of the agreement with Kunhiraman Nair are hereby given to you. Either after your taking possession of the Company or whenever you make demand we shall execute sale deed and get the same registered. 12. In the Deed of Assignment (Ex. B4) dated December 11, 1956 executed by T. M. Rama Iyer in favour of the appellant and his younger brother, it is stated: (2) After this for the purpose of clearing of the loan liability to you; the mill etc. started by the abovesaid Naganatha Iyer and others was given to me as per the agreement dated the 22nd of March, 1955. They belong to me and I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75 / - for a period of 1 year from the Vettathu Tharavad which is the jenmi of the same. (3) I have decided to assign the Oil Mill and Flour Mill described in the schedule below to you. The sale consideration is fixed at Rs. 8,000/- inclusive of Rs. 100/- given by me as advance to the jenmi. Of this Rupees 8,000/- the sum of Rs. 6,000/- due to you inclusive of interest is adjusted and after deducting the same, the balance amount of Rs. 2,000/- due to me is paid and the entire sale consideration has been paid to me in full satisfaction in the abovesaid 2 counts and I have handed over to you the mills described in the schedule with all the equipments and all the other rights pertaining to the same. You have derived the same and hereafter you are at liberty to manage the mills by yourself; to enter into rental agreements with the Jenmi of the building by paying the rent directly, to effect alienation etc. as per your wishes. I will not have any right, question or liability hereafter. I have made you believe and hereby certify that the properties are not charged by any loan liability or alienation and none except myself have any right over the same. The abovesaid agreement, the gift deed obtained by Naganatha Iyer and others and the rent receipts for having paid rent to the Jenmi are hereby given. 13. From the aforesaid clauses, it would appear that by executing the agreement (Ex. B3) dated March 22, 1955, respondents Nos. 1 to 5 surrendered their interest in favour of T. M. Rama Iyer inasmuch as in clause 4 of the said agreement that they clearly stated that plaintiffs-respondents. will not have any responsibility or objection for T. M. Rama Iyer paying the amount due to the appellant after the stipulated period and take up the management by himself and pay the rent of the building and conduct its business. By empowering T. M. Rama Iyer to pay the rent of the building respondents Nos. I to 5 were impliedly surrendering their leasehold interest in the premises in favour of T. M. Rama lyer. This is borne out by the Deed of Assignment (Ex. B4) dated December 11, 1956 wherein in clause 2, T. M. Rama Iyer had stated I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75/- for a period of one year-from Vettathu Tharavad which is the jenmi of the same. The original rent for the property as let out to respondent No. 2 was Rs. 40/- per month. The fact that after execution of the agreement dated March 22, 1955, T. M. Rama Iyer entered into another agreement with the landlord on a higher monthly rent of Rs. 75/- would show that a fresh lease was created by the landlord in favour of T. M. Rama Iyer and the earlier lease in favour of respondent No. 2 stood determined by implied surrender. In clause 3 of the Deed of Assignment (Ex. B4) dated December 11, 1956, T. M. Rama Iyer has empowered the appellant to enter Into rental agreements with the Jenmi of the building by paying, the rent directly to effect alienation. This shows hat T. M. Rama Iyer had impliedly surrendered his leasehold rights by agreeing that the appellant could enter into rental agreements with the landlord by paying the rent directly. The case of the appellant is that ever since the execution of the Deed of Assignment (Ex. B4) dated December 11, 1956, rent is being paid by him to the landlord directly. It is not the case of the plaintiffs-respondents that they had paid the rent for the premises to the landlord after March 22, 1955. In these circumstances, we are of the opinion that the plaintiffs-respondents, by executing the agreement (Ex. B3) dated March 22, 1955, had impliedly surrendered their leasehold rights in the suit property in favour of T. M. Rama Iyer and on the date of the filing of the present suit they had no subsisting leasehold interest in the same. The suit for the recovery of the possession of the suit property filed by them on the basis that the plaintiffs-respondents are the lessees thereof was, therefore, not maintainable and is liable to be dismissed. | 1[ds]The judgment of the High Court shows that the earlier suit was confined to the oil mill only, treating it as movable property independent of the property. Since the said suit did not relate to the land and building in which the oil mill is installed the said suit and the plea raised by the appellant in that suit can have no bearing in the present suit relating to possession of the land and building. The learned Judge of the High Court, with due respect, was not right in negativing the plea raised by the appellant that he is in possession of the property as a tenant on the view that the appellant did not raise this plea in the earlier suit and he could not be allowed to put forward inconsistent pleas. Since the question with regard to possession of the land and building arises in the present suit only it was permissible for the appellant to raise the plea that the plaintiffs have no subsisting leasehold interest in the suit property and that the appellant is in possession of the same as a tenant of the owner of the said property | 1 | 4,610 | 203 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
to the relevant-clauses in the agreement (Ex. B3) dated March 22, 1955 and the Deed of Assignment (Ex. B4), December 11, 1956 on which reliance has been placed by Shri Wariyar, In the agreement (Ex. B3) dated March 22, 1955, executed by respondents Nos. 1 to 5 in favour of T. M. Rama Iyer, it is stated: (4) We will not have any responsibility or objection for your paying the amount due to Kunhiraman Nair after the stipulated period and to take up the management by yourself, pay the rent of the building, conduct the business and if necessary to file a suit against Kunhiraman Nair and get the Company vacated; and to do anything as per your will and pleasure. (5) The Company is not charged by any other liability except the loan mentioned above. The gift deed given to us and the copy of the agreement with Kunhiraman Nair are hereby given to you. Either after your taking possession of the Company or whenever you make demand we shall execute sale deed and get the same registered. 12. In the Deed of Assignment (Ex. B4) dated December 11, 1956 executed by T. M. Rama Iyer in favour of the appellant and his younger brother, it is stated: (2) After this for the purpose of clearing of the loan liability to you; the mill etc. started by the abovesaid Naganatha Iyer and others was given to me as per the agreement dated the 22nd of March, 1955. They belong to me and I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75 / - for a period of 1 year from the Vettathu Tharavad which is the jenmi of the same. (3) I have decided to assign the Oil Mill and Flour Mill described in the schedule below to you. The sale consideration is fixed at Rs. 8,000/- inclusive of Rs. 100/- given by me as advance to the jenmi. Of this Rupees 8,000/- the sum of Rs. 6,000/- due to you inclusive of interest is adjusted and after deducting the same, the balance amount of Rs. 2,000/- due to me is paid and the entire sale consideration has been paid to me in full satisfaction in the abovesaid 2 counts and I have handed over to you the mills described in the schedule with all the equipments and all the other rights pertaining to the same. You have derived the same and hereafter you are at liberty to manage the mills by yourself; to enter into rental agreements with the Jenmi of the building by paying the rent directly, to effect alienation etc. as per your wishes. I will not have any right, question or liability hereafter. I have made you believe and hereby certify that the properties are not charged by any loan liability or alienation and none except myself have any right over the same. The abovesaid agreement, the gift deed obtained by Naganatha Iyer and others and the rent receipts for having paid rent to the Jenmi are hereby given. 13. From the aforesaid clauses, it would appear that by executing the agreement (Ex. B3) dated March 22, 1955, respondents Nos. 1 to 5 surrendered their interest in favour of T. M. Rama Iyer inasmuch as in clause 4 of the said agreement that they clearly stated that plaintiffs-respondents. will not have any responsibility or objection for T. M. Rama Iyer paying the amount due to the appellant after the stipulated period and take up the management by himself and pay the rent of the building and conduct its business. By empowering T. M. Rama Iyer to pay the rent of the building respondents Nos. I to 5 were impliedly surrendering their leasehold interest in the premises in favour of T. M. Rama lyer. This is borne out by the Deed of Assignment (Ex. B4) dated December 11, 1956 wherein in clause 2, T. M. Rama Iyer had stated I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75/- for a period of one year-from Vettathu Tharavad which is the jenmi of the same. The original rent for the property as let out to respondent No. 2 was Rs. 40/- per month. The fact that after execution of the agreement dated March 22, 1955, T. M. Rama Iyer entered into another agreement with the landlord on a higher monthly rent of Rs. 75/- would show that a fresh lease was created by the landlord in favour of T. M. Rama Iyer and the earlier lease in favour of respondent No. 2 stood determined by implied surrender. In clause 3 of the Deed of Assignment (Ex. B4) dated December 11, 1956, T. M. Rama Iyer has empowered the appellant to enter Into rental agreements with the Jenmi of the building by paying, the rent directly to effect alienation. This shows hat T. M. Rama Iyer had impliedly surrendered his leasehold rights by agreeing that the appellant could enter into rental agreements with the landlord by paying the rent directly. The case of the appellant is that ever since the execution of the Deed of Assignment (Ex. B4) dated December 11, 1956, rent is being paid by him to the landlord directly. It is not the case of the plaintiffs-respondents that they had paid the rent for the premises to the landlord after March 22, 1955. In these circumstances, we are of the opinion that the plaintiffs-respondents, by executing the agreement (Ex. B3) dated March 22, 1955, had impliedly surrendered their leasehold rights in the suit property in favour of T. M. Rama Iyer and on the date of the filing of the present suit they had no subsisting leasehold interest in the same. The suit for the recovery of the possession of the suit property filed by them on the basis that the plaintiffs-respondents are the lessees thereof was, therefore, not maintainable and is liable to be dismissed.
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### Explanation:
The judgment of the High Court shows that the earlier suit was confined to the oil mill only, treating it as movable property independent of the property. Since the said suit did not relate to the land and building in which the oil mill is installed the said suit and the plea raised by the appellant in that suit can have no bearing in the present suit relating to possession of the land and building. The learned Judge of the High Court, with due respect, was not right in negativing the plea raised by the appellant that he is in possession of the property as a tenant on the view that the appellant did not raise this plea in the earlier suit and he could not be allowed to put forward inconsistent pleas. Since the question with regard to possession of the land and building arises in the present suit only it was permissible for the appellant to raise the plea that the plaintiffs have no subsisting leasehold interest in the suit property and that the appellant is in possession of the same as a tenant of the owner of the said property
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Haryana State Industrial Develt.Corpn Vs. M/S Cork Manufacturing Co | in the letter PW4/16, when such a case if true, should have been put forward, such a case is not put forward. There is also no evidence of any subsequent agreement in that regard. Merely because the officers of the appellant were induced to write letters regarding removal of the pole long after the resumption does not establish any such condition of allotment. 14. The plaintiffs plea that it was not aware of the order of resumption is belied by the letters marked on its side through PW4 and the admission of PW6. These letters clearly show that the plaintiff was given notice of the resumption and was informed that if he did not comply with the requirement and sent satisfactory reply, the land will be resumed without any further notice within the time stipulated therein. Thus obviously, adequate notice and adequate opportunity was given to the plaintiff before the order of resumption was passed. The non-examination of Om Prakash Saharan was fatal to the case of the plaintiff under the circumstances. The courts below acted perversely in entering a finding that the order of resumption was illegal and was not binding on the plaintiff. I find that the courts below have not adverted to the relevant materials available. Moreover, it is seen that P.W.6, who is examined on behalf of the plaintiff came into the picture only in the year 1996 and was not a competent witness to speak about anything that transpired in the year 1991 and that the original allottee Om Parkash Saharan had not even come forward to give evidence on behalf of the plaintiff. It was a clear case for drawing an adverse inference against the plaintiff for non examination of Om Parkash Saharan. These vital aspects have been ignored by the trial court and by the first appellate court when they purported to find that the order of cancellation was not binding on the plaintiff. I am of the view that a finding ignoring legal evidence available in the case and ignoring the inferences to be drawn from the circumstances established, is a finding that can only be described as perverse and such a finding is not binding on a Second Appellate Court under Section 100 of the Code. In fact, it compels interference by the Second Appellate Court. The High Court has unfortunately not adverted to anything relevant and was incorrect in thinking that the findings of fact are not liable to be interfered with in the case on hand. At least, it should have seen that parole evidence to alter the terms of a written instrument was not permissible and the fact that the courts below had relied on such evidence justified interference by the High Court in Second Appeal. 15. Same is the position regarding the finding on possession. The correspondence with the Electricity Board does not establish that the plaintiff continued to be in possession notwithstanding its default and the order of resumption with notice to the plaintiff. . The evidence of P.W. 6 is not evidence at all of possession of the plaintiff as on the date of the suit or of possession subsequent to 1991. There is no evidence to show that the plaintiff Om Parkash Saharan, the allottee continued in possession until the power of attorney was executed in favour of P.W. 6. The suggestion to P.W. 6 that he was aware of the resumption and re-allotment to another entity when he filed the suit, is a justifiable suggestion on the facts of this case. The finding on possession is also found to be based on no legal evidence and consequently infirm and liable to be interfered with by this Court as it should have been interfered with by the Second Appellate Court.16. I am also of the view that the Second Appellate Court was clearly in error in refusing to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the defendant. It must be noticed that not even an objection was filed on behalf of the plaintiff to the application under Order 41 Rule 27 of the Code denying the issue of such a notice. There was no denial of the status of the counsel who had issued the notice on behalf of the plaintiff. There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. The plaintiff had no case before the High Court that it had not instructed the concerned counsel to send such a notice. After all, the purpose for which the notice was produced was only to show that the plaintiff was aware of the resumption made in the year 1991 and the specific acknowledgement of receipt of the concerned letters in that behalf. Even otherwise, the letters produced at the trial do indicate that the plaintiff was aware of the resumption of the plot. Therefore, this was a case where the document produced under Order 41 Rule 27 of the Code was required to enable the High Court to pronounce a judgment more satisfactory to its conscience constituting other sufficient cause within the meaning of Order 41 Rule 27 of the Code for production of additional evidence. The authenticity of the notice had not been questioned by filing an objection and the High Court was therefore in error in thinking that it was not a document which could be straight away accepted.17. Thus, on the whole, I am satisfied that the plaintiff had not made out any case for relief in the present suit. The judgments of the courts below therefore call for interference. I am satisfied that the appeal deserves to be allowed. If the decree now passed is not set aside, I apprehend that I would be failing in my duty exercising jurisdiction under Article 136 of the Constitution of India. After all, the jurisdiction of this Court is a corrective jurisdiction and not a restricted one.18. | 1[ds]15. Same is the position regarding the finding on possession. The correspondence with the Electricity Board does not establish that the plaintiff continued to be in possession notwithstanding its default and the order of resumption with notice to the plaintiff. . The evidence of P.W. 6 is not evidence at all of possession of the plaintiff as on the date of the suit or of possession subsequent to 1991. There is no evidence to show that the plaintiff Om Parkash Saharan, the allottee continued in possession until the power of attorney was executed in favour of P.W. 6. The suggestion to P.W. 6 that he was aware of the resumption and re-allotment to another entity when he filed the suit, is a justifiable suggestion on the facts of this case. The finding on possession is also found to be based on no legal evidence and consequently infirm and liable to be interfered with by this Court as it should have been interfered with by the Second Appellate Court.16. I am also of the view that the Second Appellate Court was clearly in error in refusing to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the defendant. It must be noticed that not even an objection was filed on behalf of the plaintiff to the application under Order 41 Rule 27 of the Code denying the issue of such a notice. There was no denial of the status of the counsel who had issued the notice on behalf of the plaintiff. There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. The plaintiff had no case before the High Court that it had not instructed the concerned counsel to send such a notice. After all, the purpose for which the notice was produced was only to show that the plaintiff was aware of the resumption made in the year 1991 and the specific acknowledgement of receipt of the concerned letters in that behalf. Even otherwise, the letters produced at the trial do indicate that the plaintiff was aware of the resumption of the plot. Therefore, this was a case where the document produced under Order 41 Rule 27 of the Code was required to enable the High Court to pronounce a judgment more satisfactory to its conscience constituting other sufficient cause within the meaning of Order 41 Rule 27 of the Code for production of additional evidence. The authenticity of the notice had not been questioned by filing an objection and the High Court was therefore in error in thinking that it was not a document which could be straight away accepted.17. Thus, on the whole, I am satisfied that the plaintiff had not made out any case for relief in the present suit. The judgments of the courts below therefore call for interference. I am satisfied that the appeal deserves to be allowed. If the decree now passed is not set aside, I apprehend that I would be failing in my duty exercising jurisdiction under Article 136 of the Constitution of India. After all, the jurisdiction of this Court is a corrective jurisdiction and not a restricted one.18. The appeal is therefore allowed. The judgments and decrees of the courts below are set aside and the suit filed by the plaintiff is dismissed with costs throughout.19. During the course of the hearing, the defendant -- appellant offered that the plot could be allotted afresh to the plaintiff, if the plaintiff was willing to pay the price at the rate of Rs.13,000/- per square meter which is the current rate. The plaintiff was not willing to pay that price. But learned counsel for the plaintiff contended that the plaintiff had, obviously subsequent to the decreeing of the suit, had put up a construction in the property. It is obvious that on the date of suit, there was no construction. The Local Commissioners report establishes that and the evidence of P.W. 6 also indicates that. In that situation, taking note of the circumstances, I think it proper to give the plaintiff an opportunity to have the land allotted to it afresh, on its paying a price for the plot at the rate of Rs.10,000/- per square meter. In other words, if the plaintiff - respondent pays to the defendant -appellant, the price of the plot at Rs.10,000/- per square meter within four months from today, there will be a fresh allotment of the plot by the defendant to the plaintiff. While calculating the amount, the plaintiff will be entitled to adjust any sum that might have been paid towards the allotment of the plot originally made in the year 1987 and it need only pay the balance amount. In case, the price at the rate of Rs.10,000/- per square meter is not paid by the plaintiff to the defendant within a period of four months as stipulated above, the defendant would forthwith take physical possession of the land and report that fact to the trial court by way of the affidavit and deal with the plot in accordance with law.20. Before leaving this case, I think it necessary to issue a direction and to make an observation. The direction is to the appellant to initiate action against those officers who were dealing with the cancellation of the allotment and taking possession of the property, and more particularly those who were in charge of the litigation and who failed to produce vital documents including the notice issued on behalf of the plaintiff that was sought to be produced in Second Appeal. It is absolutely necessary to take such action in the interests of the appellant, the citizens and the State since it should not be forgotten that the appellant is a trustee of public property and is expected to deal with it as a trustee with all care and caution. The second is to exhort the trial courts, the first appellate courts and the second appellate courts in the State to show better application of mind while deciding a lis keeping in mind that what they are performing is a divine function that is onerous and at the same time challenging. I am making these observations regarding the courts in the concerned State since for the last three years I have been noticing with regret the lack of application in many a case that had come before this Court. | 1 | 4,556 | 1,153 | ### Instruction:
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in the letter PW4/16, when such a case if true, should have been put forward, such a case is not put forward. There is also no evidence of any subsequent agreement in that regard. Merely because the officers of the appellant were induced to write letters regarding removal of the pole long after the resumption does not establish any such condition of allotment. 14. The plaintiffs plea that it was not aware of the order of resumption is belied by the letters marked on its side through PW4 and the admission of PW6. These letters clearly show that the plaintiff was given notice of the resumption and was informed that if he did not comply with the requirement and sent satisfactory reply, the land will be resumed without any further notice within the time stipulated therein. Thus obviously, adequate notice and adequate opportunity was given to the plaintiff before the order of resumption was passed. The non-examination of Om Prakash Saharan was fatal to the case of the plaintiff under the circumstances. The courts below acted perversely in entering a finding that the order of resumption was illegal and was not binding on the plaintiff. I find that the courts below have not adverted to the relevant materials available. Moreover, it is seen that P.W.6, who is examined on behalf of the plaintiff came into the picture only in the year 1996 and was not a competent witness to speak about anything that transpired in the year 1991 and that the original allottee Om Parkash Saharan had not even come forward to give evidence on behalf of the plaintiff. It was a clear case for drawing an adverse inference against the plaintiff for non examination of Om Parkash Saharan. These vital aspects have been ignored by the trial court and by the first appellate court when they purported to find that the order of cancellation was not binding on the plaintiff. I am of the view that a finding ignoring legal evidence available in the case and ignoring the inferences to be drawn from the circumstances established, is a finding that can only be described as perverse and such a finding is not binding on a Second Appellate Court under Section 100 of the Code. In fact, it compels interference by the Second Appellate Court. The High Court has unfortunately not adverted to anything relevant and was incorrect in thinking that the findings of fact are not liable to be interfered with in the case on hand. At least, it should have seen that parole evidence to alter the terms of a written instrument was not permissible and the fact that the courts below had relied on such evidence justified interference by the High Court in Second Appeal. 15. Same is the position regarding the finding on possession. The correspondence with the Electricity Board does not establish that the plaintiff continued to be in possession notwithstanding its default and the order of resumption with notice to the plaintiff. . The evidence of P.W. 6 is not evidence at all of possession of the plaintiff as on the date of the suit or of possession subsequent to 1991. There is no evidence to show that the plaintiff Om Parkash Saharan, the allottee continued in possession until the power of attorney was executed in favour of P.W. 6. The suggestion to P.W. 6 that he was aware of the resumption and re-allotment to another entity when he filed the suit, is a justifiable suggestion on the facts of this case. The finding on possession is also found to be based on no legal evidence and consequently infirm and liable to be interfered with by this Court as it should have been interfered with by the Second Appellate Court.16. I am also of the view that the Second Appellate Court was clearly in error in refusing to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the defendant. It must be noticed that not even an objection was filed on behalf of the plaintiff to the application under Order 41 Rule 27 of the Code denying the issue of such a notice. There was no denial of the status of the counsel who had issued the notice on behalf of the plaintiff. There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. The plaintiff had no case before the High Court that it had not instructed the concerned counsel to send such a notice. After all, the purpose for which the notice was produced was only to show that the plaintiff was aware of the resumption made in the year 1991 and the specific acknowledgement of receipt of the concerned letters in that behalf. Even otherwise, the letters produced at the trial do indicate that the plaintiff was aware of the resumption of the plot. Therefore, this was a case where the document produced under Order 41 Rule 27 of the Code was required to enable the High Court to pronounce a judgment more satisfactory to its conscience constituting other sufficient cause within the meaning of Order 41 Rule 27 of the Code for production of additional evidence. The authenticity of the notice had not been questioned by filing an objection and the High Court was therefore in error in thinking that it was not a document which could be straight away accepted.17. Thus, on the whole, I am satisfied that the plaintiff had not made out any case for relief in the present suit. The judgments of the courts below therefore call for interference. I am satisfied that the appeal deserves to be allowed. If the decree now passed is not set aside, I apprehend that I would be failing in my duty exercising jurisdiction under Article 136 of the Constitution of India. After all, the jurisdiction of this Court is a corrective jurisdiction and not a restricted one.18.
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Saharan, the allottee continued in possession until the power of attorney was executed in favour of P.W. 6. The suggestion to P.W. 6 that he was aware of the resumption and re-allotment to another entity when he filed the suit, is a justifiable suggestion on the facts of this case. The finding on possession is also found to be based on no legal evidence and consequently infirm and liable to be interfered with by this Court as it should have been interfered with by the Second Appellate Court.16. I am also of the view that the Second Appellate Court was clearly in error in refusing to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the defendant. It must be noticed that not even an objection was filed on behalf of the plaintiff to the application under Order 41 Rule 27 of the Code denying the issue of such a notice. There was no denial of the status of the counsel who had issued the notice on behalf of the plaintiff. There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. The plaintiff had no case before the High Court that it had not instructed the concerned counsel to send such a notice. After all, the purpose for which the notice was produced was only to show that the plaintiff was aware of the resumption made in the year 1991 and the specific acknowledgement of receipt of the concerned letters in that behalf. Even otherwise, the letters produced at the trial do indicate that the plaintiff was aware of the resumption of the plot. Therefore, this was a case where the document produced under Order 41 Rule 27 of the Code was required to enable the High Court to pronounce a judgment more satisfactory to its conscience constituting other sufficient cause within the meaning of Order 41 Rule 27 of the Code for production of additional evidence. The authenticity of the notice had not been questioned by filing an objection and the High Court was therefore in error in thinking that it was not a document which could be straight away accepted.17. Thus, on the whole, I am satisfied that the plaintiff had not made out any case for relief in the present suit. The judgments of the courts below therefore call for interference. I am satisfied that the appeal deserves to be allowed. If the decree now passed is not set aside, I apprehend that I would be failing in my duty exercising jurisdiction under Article 136 of the Constitution of India. After all, the jurisdiction of this Court is a corrective jurisdiction and not a restricted one.18. The appeal is therefore allowed. The judgments and decrees of the courts below are set aside and the suit filed by the plaintiff is dismissed with costs throughout.19. During the course of the hearing, the defendant -- appellant offered that the plot could be allotted afresh to the plaintiff, if the plaintiff was willing to pay the price at the rate of Rs.13,000/- per square meter which is the current rate. The plaintiff was not willing to pay that price. But learned counsel for the plaintiff contended that the plaintiff had, obviously subsequent to the decreeing of the suit, had put up a construction in the property. It is obvious that on the date of suit, there was no construction. The Local Commissioners report establishes that and the evidence of P.W. 6 also indicates that. In that situation, taking note of the circumstances, I think it proper to give the plaintiff an opportunity to have the land allotted to it afresh, on its paying a price for the plot at the rate of Rs.10,000/- per square meter. In other words, if the plaintiff - respondent pays to the defendant -appellant, the price of the plot at Rs.10,000/- per square meter within four months from today, there will be a fresh allotment of the plot by the defendant to the plaintiff. While calculating the amount, the plaintiff will be entitled to adjust any sum that might have been paid towards the allotment of the plot originally made in the year 1987 and it need only pay the balance amount. In case, the price at the rate of Rs.10,000/- per square meter is not paid by the plaintiff to the defendant within a period of four months as stipulated above, the defendant would forthwith take physical possession of the land and report that fact to the trial court by way of the affidavit and deal with the plot in accordance with law.20. Before leaving this case, I think it necessary to issue a direction and to make an observation. The direction is to the appellant to initiate action against those officers who were dealing with the cancellation of the allotment and taking possession of the property, and more particularly those who were in charge of the litigation and who failed to produce vital documents including the notice issued on behalf of the plaintiff that was sought to be produced in Second Appeal. It is absolutely necessary to take such action in the interests of the appellant, the citizens and the State since it should not be forgotten that the appellant is a trustee of public property and is expected to deal with it as a trustee with all care and caution. The second is to exhort the trial courts, the first appellate courts and the second appellate courts in the State to show better application of mind while deciding a lis keeping in mind that what they are performing is a divine function that is onerous and at the same time challenging. I am making these observations regarding the courts in the concerned State since for the last three years I have been noticing with regret the lack of application in many a case that had come before this Court.
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Neena Aneja & Anr Vs. Jai Prakash Associates Ltd | in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred. 68. It would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation. Ironically, the objection which has been raised in the present case to the continued exercise of jurisdiction by the NCDRC in regard to the consumer complaint filed by the appellant is by the developer who is the respondent herein. It is a developer who opposed the continuation of the proceedings before the NCDRC on the ground that under the new consumer legislation the pecuniary limits of the jurisdiction exercisable by the NCDRC have been enhanced and the complaint filed by the appellant which was validly instituted under the erstwhile law should be transferred to the SCDRC. Such a course of action will result in thousands of cases being transferred across the country, from the NCDRC to the SCDRCs and from the SCDRCs to the District Commission. 69. Data drawn from annual reports of the Union Ministry of Consumer Affairs indicates pendency from financial year 2015-16 to financial year 2019-20: Report for FY 2015-16 (figures as on 31.12.2015)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004604_AR_2015- 16.pdf , page 34) TABLE Report for FY 2016-17 (figures as on 31.12.2016)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004643_AR_2016- 17.pdf , page 47) TABLE Report for FY 2017-18 (figures as on 29.01.2018)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004742_AR_2017- 18.pdf , page 49) TABLE Report for FY 2018-19 (figures as on 31.03.2019)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/_. , page 41) TABLE Report for FY 2019-20 (figures as on 31.10.2019)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1596167686_Annual%20Report%202019-20.pdf page 45) TABLE The above data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld. This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication. The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation. The legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to the new pecuniary limits set up for the fora established by the new law, were that to be its intention. The omission, when contextualized against the statutory scheme, portends a contrary intention to protect pending proceedings through Section 107(2) of the Act of 2019. This intention appears likely, particularly in light of previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.(Consumer Case No. 286 of 2000 (NCDRC)) construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran(Revision Petitions Nos 400 to 402 of 1993 (NCDRC)), where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu(supra)]. Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora. 70. It is accepted, that in defining the jurisdiction of the District Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to entertain complaints. A similar provision is contained in Section 47 and Section 58 in regard to the SCDRC and NCDRC. The expression entertain has been considered in a two judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives(Hindusthan Commercial Bank; (1971) 3 SCC 124 ), in the context of the provisions of Order XXI Rule 90 of the CPC. The Court has accepted that the expression entertain means to adjudicate upon or proceed to consider on merits. In Nusli Neville(supra), while considering the provisions of Section 9A of the CPC as inserted by a Maharashtra Amendment, a two judge Bench followed the exposition in Hindusthan Commercial Bank(supra). Undoubtedly, the expression entertain has been construed in the context of Section 9A of the Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of this Court in Nusli Wadia(supra) to mean to adjudicate upon or to proceed to consider on merits. Sections 34, 47 and 58 similarly indicate that the respective consumer fora can entertain complaints within the pecuniary limits of their jurisdiction. These provisions will undoubtedly apply to complaints which were instituted after the Act of 2019 came into force. However, the mere use of the word entertain in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the Act of 2019 or under Section 106 of the Act of 2019 which is a power to remove difficulties for a period of two years after the commencement of the Act of 2019. F Summation | 1[ds]15. The discussion on the law begins with the decision of the Federal Court in Venugopala Reddiar v. Krishnaswami Reddiar, alias Raja Chidambara Reddiar AIR 1943 FC 24 which considered the validity of a pending proceeding when the court had lost territorial jurisdiction. Before 1937, when Burma was a part of British India, it was permissible under Section 17 of the Civil Procedure Code to include immovable property situated in Burma as a part of the subject matter of a suit. The principal respondent instituted a suit for the recovery of certain properties. A large portion of these properties was situated in Rangoon, Burma. The suit had been instituted before the Trichinopoly Court. After Burma ceased to be a part of India on 1 April 1937, the contesting defendants objected to the jurisdiction of the Court to deal with the Burma property. The Trial Judge upheld the objection that it no longer had jurisdiction over property situated in Burma. This was reversed by a Division Bench of the Madras High Court. The Division Bench held that Article 10 of the Government of India (Adaptation of Indian Laws) Order 1937 provided that the powers exercisable by any authority, which in the view of the High Court would include a Court, before the separation came into force should continue to be exercised until a contrary provision was passed by the legislature. The High Court also held that a right to continue a duly instituted suit was in the nature of a vested right which cannot be taken away except by a clear legislative intent.Justice Srinivasa Varadachariar summed up the legal principle at page 48 by observing:..The true position, as we have already stated, is not whether there is an express provision permitting the continuance of pending proceedings, but whether there is any clear indication against the continuance of pending proceedings to their normal termination.In an earlier part of the judgment, the Court noted that paragraph (e) of sub- Section (2) of Section 38 of the Interpretation Act, 1889 provides that any legal proceedings in respect of any right acquired or accrued under the repealed enactment may continue as if the repealing Act had not been passed. Noting that the interpretation of this paragraph is not free from difficulty, Justice Varadachariar observed that the view has sometimes been taken that what is saved is a substantive right acquired under the repealed enactment and that the paragraph cannot be invoked in cases where the substantive right is not taken away by the repealing Act but the mere forum for, or the method of enforcing it is changed. On the other hand, the Court noted, it has been maintained that a right to obtain a relief in a suit pending at the time when the repealing enactment comes into operation is itself in the nature of a substantive right. Of the three grounds which had weighed with the High Court in affirming the jurisdiction of the Trial Court, the Federal Court rested its decision on the principle contained in the ruling of the Privy Council in Colonial Sugar Refining Company Ltd. v. Irving (1905) AC 369 which held that a right to appeal is a substantive right whose amendment would generally be prospective:As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is: was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to Their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, Their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. (emphasis supplied)The principle enunciated by the Privy Council in Colonial Sugar Refining was reiterated.23. The first decision of this Court that interpreted a mere change in forum, that did not impact any other substantive or vested right of the litigant, was a three judge bench decision of this Court in New India Assurance Company Limited v. Smt Shanti Mishra New India Assurance; (1975) 2 SCC 840 . This case involved the jurisdiction of the Motor Vehicles Tribunal vis-à-vis the City Civil Court, in the case of a fatal accident. The accident had occurred on 11 September 1966 which gave rise to a cause of action for the legal heirs to claim compensation under the Fatal Accidents Act 1855. Under Article 82 of the Limitation Act 1963, a limitation of two years from the occurrence of the accident was stipulated. But in the meantime, a claims tribunal under Section 110 of the Motor Vehicles Act 1939 was constituted by the State government on 18 March 1967 following which an application was filed by the claimant under Section 110A on 8 July 1967. Both the tribunal and the High Court overruled the objection of the insurer to jurisdiction. In appeal, Justice NL Untwalia speaking for the three judge Bench held:5…..It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions arising out of an accident occurring in sub-section (1) and over the area in which the accident occurred, mentioned in sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there was no difficulty in giving the answer in a simple way… (emphasis supplied)Dealing with the bar of limitation under Section 110A(3), this Court held that it could be said that strictly speaking the bar would not operate in relation to an application for compensation arising out of an accident which had occurred prior to the constitution of the Tribunal. However, in directing the institution of claims before the Tribunal, this Court held:10. Apropos the bar of limitation provided in Section 110- A(3), one can say, on the basis of the authorities aforesaid that strictly speaking, the bar does not operate in relation to an application for compensation arising out of an accident which occurred prior to the constitution of the claims tribunal. But since in such a case there is a change of forum, unlike the fact of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the constitution of the tribunal, which ordinarily and generally, would be the time of limitation mentioned in sub-section (3). If the application could not be made within that time from the date of the constitution of the tribunal, in a given case, the further time taken in the making of the application may be held to be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in sub-section (3) from the date of the constitution of the tribunal can be condoned under the proviso to that sub-section. In any view of the matter, in our opinion, the jurisdiction of the civil court is ousted as soon as the claims tribunal is constituted and the filing of the application before the tribunal is the only remedy available to the claimant. On the facts of this case, we hold that the remedy available to the respondents was to go before the claims tribunal and since the law was not very clear on the point, the time of about four months taken in approaching the tribunal after its constitution can be held to be either a reasonable time or the delay of less than 2 months could well be condoned under the proviso to sub-section (3) of Section 110-A.The above decision conclusively held that a change of forum generally operates retrospectively, irrespective of whether the cause or right of action had accrued earlier. It directed that once the change in forum had been effected, the litigant would have to be directed to the new forum.24. A subsequent decision of a two judge Bench of this Court in Maria Cristina De Souza v. Amria Zurana Pereira Pinto Maria Cristina; (1979) 1 SCC 92 , enunciated the law relating to change of forum vis-à-vis the right of appeal. In that case, a suit was instituted in 1960 under the Portuguese Civil Procedure Code and decreed against the appellants in 1968. The appellants lodged an appeal before the Court of the Judicial Commissioner. Following the liberation of Goa in 1961, the Code of Civil Procedure 1908 was extended to the territories of Goa, Daman and Diu with effect from 15 June 1966 by Act 30 of 1965 and the corresponding provision and the corresponding Portuguese Code were repealed. The legislative assembly of Goa enacted the Goa, Daman and Diu Civil Courts Act 1965 under which the suit which was pending before the Court at Margao was transferred to and decreed by the Senior Civil Judge. Since the suit was of a value exceeding Rs 10 lacs an appeal lay directly to the High Court which under Section 2(f) meant the Judicial Commissioners Court. Justice V D Tulzapurkar, speaking for the two judge Bench held:5. On the question as to where the appeal could be lodged we are clearly of the view that the forum was governed by the provisions of the Goa, Daman and Diu (Extension of Code of Civil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (Central Act 30 of 1965) read with the provisions of the Goa, Daman and Diu civil court Act, 1965 (Goa Act 16 of 1965) both of which came into force simultaneously on June 15, 1966 and the appeal was required to be filed in the Judicial Commissioners Court. Under the Central Act 30 of 1965 with effect from June 15, 1966 the provisions of the Indian Civil Procedure Code were extended to the Union Territories of Goa, Daman and Diu and the corresponding provisions of the Portuguese Code were repealed while under the Goa Act 16 of 1965 the instant suit which was pending before the Comarca Court at Margao was continued and decreed by corresponding Court of the Senior Civil Judge, who ultimately decreed it on March 8, 1968. Under the Indian Civil Procedure Code read with Section 22 of the Goa Act since the property involved in the suit was of the value exceeding Rs 10,000 the appeal clearly lay to the Judicial Commissioners Court. The contention that since the right of appeal had been conferred by Portuguese Code, the forum where it could be lodged was also governed by the Portuguese Code cannot be accepted. It is no doubt well- settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. This position has been made clear by clauses (b) and (c) of the proviso to Section 4 of the Central Act 30 of 1965 which substantially correspond to clauses (c) and (e) of Section 6 of the General Clauses Act, 1897. This position, has also been settled by the decisions of the Privy Council and this Court (vide Colonial Sugar Refining Company Ltd. v. Irving [1905 AC 369] and Garikapatti Veeraya v. N. Subbiah Choudhury [1957 SCR 488 ] but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act. That the forum of appeal, and also the limitation for it, are matters pertaining to procedural law will be clear from the following passage appearing at p. 462 of Salmonds Jurisprudence (12th Edn.):Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions.It is true that under clause (c) of the proviso to Section 4 of Central Act 30 of 1965 (which corresponds to Section 6(e) of the General Clauses Act, 1897) it is provided that a remedy or legal proceeding in respect of a vested right like a right to an appeal may be instituted, continued or enforced as if this Act (meaning the repealing Act) had not been passed. But this provision merely saves the remedy or legal proceeding in respect of such vested right which it is open to the litigant to adopt notwithstanding the repeal but this provision has nothing to do with the forum where the remedy or legal proceeding has to be pursued. If the repealing Act provides new forum where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the repealing Act. We may point out that such a view of Section 6 (e) of the General Clauses Act, 1897 has been taken by the Rajasthan High Court in the case of Purshotam Singh v. Narain Singh and State of Rajasthan [AIR 1955 Raj 203 ] . It is thus clear that under the repealing enactment (Act 30 of 1965) read with Goa Enactment (Act 16 of 1965) the appeal lay to the Judicial Commissioners Court and the same was accordingly filed in the proper Court.25. The decision in Maria Cristina (supra) makes a distinction between a right of appeal, which is a substantive right that is vested in a litigant on the commencement of the lis in the court of first instance and the forum where an appeal can be lodged which is indubitably a procedural matter. Hence, in the view of the Court, the appeal would have to be lodged in a forum provided by the repealing Act though the right had arisen under the repealed Act. These observations of the Court must be read together with the subsequent observation that if the repealing act provides a new forum where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the repealing Act. The decisions in New India Assurance(supra) and Maria Cristina (supra) further the interpretation that a change in forum is indubitably in the realm of procedural law that applies retrospectively, unless the statute provides otherwise. The necessary corollary of these decisions, is that the forum for determination of a lis, whether in the case of an appeal [Maria Cristina (supra)] or in situations where the right of action had accrued [New India Assurance (supra)] is in the realm of procedural law.26. In Hitendra Vishnu Thakur v. State of Maharashtra Hitendra Vishnu Thakur; (1994) 4 SCC 602 , one among the questions analyzed in a two judge Bench decision of this Court was whether clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act 1987(TADA) introduced by an amending legislation governing Section 167(2) of the Code of Criminal Procedure(CrPC) was in the realm of procedural law and if so, whether it would apply to pending cases. Dr Justice AS Anand (as he then was) held that amending Act 43 of 1993 was procedural and retrospective; and that clauses (b) and (bb) of Section 20(4) of the TADA would apply to cases which were pending investigation on the date when it came into force. In that context, the principles of law, that aligned with the position in New India Assurance(supra) and Maria Cristina(supra), were formulated in the following terms:26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.27. In Sudhir G Angur v. M Sanjeev Sudhir G Angur; (2006) 1 SCC 141 , a three judge Bench of this Court considered the impact of a change in procedural law to pending proceedings before a particular forum. In this case, the Mysore Code was repealed in 2003 and the Code of Civil Procedure, 1908 was to apply. This Court held that the relevant court was under a duty to take notice of the change in law relating to forum and apply it to a pending proceeding. In doing so, Justice SN Variava approved the following exposition of law of the Bombay High Court in Shiv Bhagwan Moti Ram Saroji v. Onkarmal Ishar Das (1952) 54 Bom LR 330:11. In our view, Mr G.L. Sanghi is also right in submitting that it is the law on the date of trial of the suit which is to be applied. In support of this submission, Mr Sanghi relied upon the judgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass [AIR 1952 Bom 365 : 54 Bom LR 330] wherein it has been held that no party has a vested right to a particular proceeding or to a particular forum. It has been held that it is well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repealed. It could not be denied that now the Court has jurisdiction to entertain this suit.28. It is trite law to state that all procedural law is retrospective, unless a contrary legislative intention can be observed. A two judge Bench in Ramesh Kumar Soni v. State of Maharashtra Ramesh Kumar Soni; (2013) 14 SCC 696 considered a case where an FIR was registered under the provisions of Sections 408, 420, 467, 468 and 471 of the Indian Penal Code. On the date of the registration of the case, the offences were triable by the Magistrate of the First Class in terms of the First Schedule of the CrPC. As a result of Madhya Pradesh Act 2 of 2008, the First Schedule to the CrPC was amended. As a consequence, offences under Sections 467, 468 and 471 were triable by a Court of Sessions instead of a JMFC. Consequent to the amendment, the JMFC committed the case to the Sessions Court. A reference was made to the High Court on whether the amendment would apply retrospectively and whether cases pending before the JMFC and committed to the Sessions Court should be tried de novo by the Sessions Judge or should be remanded back to the Magistrate for further trial. A Full Bench of the Madhya Pradesh High Court held that cases pending before the JMFC on 22 February 2008 were unaffected by the amendment and were triable by the JMFC since the amending Act did not contain a clear indication that such cases would be made over to the Court of Sessions. Justice TS Thakur (as the learned Chief Justice then was) speaking for the two judge Bench observed that the Madhya Pradesh Amendment had shifted the forum of trial from the Court of the Magistrate of the First Class to the Court of Sessions. The issue was whether the amendment to the forum was prospective or would govern cases that were pending on the date of the amendment. This Court noted that:9. Having said so, we may now examine the issue from a slightly different angle. The question whether any law relating to forum of trial is procedural or substantive in nature has been the subject-matter of several pronouncements of this Court in the past. We may refer to some of these decisions, no matter briefly.After adverting to the decisions in New India Assurance(supra), Hitendra Vishnu Thakur(supra) and Sudhir G Angur(supra), the Court observed:14. The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of the Magistrate, First Class to the Court of Session. Apart from the fact that as on the date the amendment came into force no case had been instituted against the appellant nor had the Magistrate taken cognizance against the appellant, any amendment shifting the forum of the trial had to be on principle retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognized. The High Court was, in that view of the matter, justified in (sic not) interfering with the order passed by the trial court.This Court noted that the Full Bench of the High Court had however relied upon inter alia the decision in Manujendra Dutt(supra). This decision was distinguished on the ground that the suit had been instituted and concluded and no vested right could be claimed for a particular forum for litigation. This Court consequently overruled the judgment of the Full Bench of the High Court, though prospectively, since many cases which had sent back from the Sessions Court to the JMFC may have in the meantime been concluded or would have reached an advanced stage. An exception to those cases was made as a change of forum at that stage would cause unnecessary and avoidable hardship to the accused, if they were committed to the Sessions Court for trial after the amendment and the view of this Court. However, the principle of change of forum being procedural, generally retrospective and applicable to pending proceedings was upheld.29. Now, in this backdrop, it becomes necessary to consider the 1992 decision of a two judge Bench of this Court in Commissioner of Income Tax, Orissa v. Dhadi Sahu Dhadi Sahu;1994 Suppl. (1) SCC 257 and several decisions which adverted to it. This was a case where the assessee had preferred appeals to the Income Tax Appellate Tribunal. The Tribunal allowed the appeals and set aside the penalties holding that in view of the amendment made to Section 274(2) of the Income Tax Act 1961 with effect from 1 April 1971, the Inspecting Assistant Commissioner(IAC) lost his jurisdiction. The power of the Income Tax Officer to impose a penalty under Section 271 was subject to Section 274. As a result of the amending Act which came into force on 1 April 1971, the amount of income allegedly concealed had to exceed twenty- five thousand rupees. The effect of this amendment was that the Assistant Commissioner did not have jurisdiction over the assessee as the concealed amount was lesser than the minimum amount prescribed by the subsequent amendment. Justice Yogeshwar Dayal speaking for the two judge Bench premised the judgment on the general principle of law that a change of forum does not affect pending actions unless a contrary intent is shown:18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.This Court held that the amending Act did not make any provision that references validly pending before IAC shall be returned without passing any final order if the amount of income in respect of which particulars have been concealed did not exceed rupees twenty five thousand. This, in the view of the Court, supported the inference that the IAC continued to have jurisdiction to impose a penalty on pending references. The previous operation of Section 274(2) as it stood before 1 April 1971 and anything done under it, continued to have effect under Section 6(b) for the General Clauses Act enabling the IAC to pass orders imposing a penalty in a pending reference. If the reference was made before 1 April 1971, it would be governed by Section 274(2) as it stood before that date and the IAC would continue to have jurisdiction. However, in paragraph 21 of the decision, this Court observed:21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.30. This Court then adverted to the decision in Manujendra Dutt(supra) and Mohd. Idris(supra) and observed that amending an Act does not show that the pending proceedings before the court on reference abate. Therefore, the decision of the two judge Bench in Dhadi Sahu(supra) held that a litigant had a crystallized right to a forum when proceedings have been initiated and are pending. Such a right vested, in the view of the Court, is distinct from a pure procedure to be followed before the forum concerned. In taking this view, the two judge Bench in Dhadi Sahu(supra) did not consider a three judge bench decision in New India Assurance(supra) as well as a previous co-ordinate Bench decision in Maria Cristina(supra), which relied on common law jurisprudence and Section 6 of the General Clauses Act to hold that a change in forum is purely a procedural matter which operates retrospectively in the absence of a contrary legislative mandate. The latter principle has since been followed in the decisions in Hitendra Vishnu Thakur(supra); Sudhir G Angur(supra); Ranbir Yadav v. State of Bihar (1995) 4 SCC 392 ; Kamlesh Kumar v. State of Jharkhand (2013) 15 SCC 460 and Ramesh Kumar Soni(supra).36. A two judge Bench of this Court in Videocon International Limited v. Securities and Exchange Board of India Videocon International; (2015) 4 SCC 33 dealt with the Appellate provisions contained in the Security and Exchange Board of India Act 1992. Following the insertion of Chapter 6B with effect from 25 January 1995, the remedy of an appeal was provided to the Securities Appellate Tribunal under Section 15 T to a person aggrieved by an order of the Board or by an Adjudicating Officer. Section 15 Z provided an appeal to the High Court against an order of the SAT on any question of fact or law. Section 15 Z was amended with retrospective effect from 29 October 2002 to provide an appeal against the orders of the SAT to the Supreme Court on any question of law. The forum of the second appellate remedy was changed from the High Court to the Supreme Court. Appeals against the order of the SAT which had been passed before 29 October 2002 (the date of amendment) were filed before the High Court which held that such appeals which have been instituted before the enforcement of amended Section 15 Z would not be affected by the amendment and that it would continue to have jurisdiction to hear and dispose of the appeals. The Amending Act had a repeal and savings provision in Section 32 which was in the following terms:32. Repeal and saving.—(1) The Securities and Exchange Board of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002), is hereby repealed.(2) Notwithstanding the repeal of the Securities and Exchange Board of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002), anything done or any action taken under the principal Act as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act, as amended by this Act.37. The judgment of the High Court was assailed, citing the decisions in Hitendra Vishnu Thakur(supra) and Maria Cristina(supra) amongst others, and it was urged that the amendment by which the appellate forum was changed from the High Court to the Supreme Court must be treated as merely procedural. On the other hand, the Respondent relied on the decision in Dhadi Sahu(supra) and Ambalal Sarabhai(supra). Justice JS Khehar (as the learned Chief Justice then was) examined whether the amendment envisaged a mere change of forum.38. In this context, this Court noted that while under the un-amended Section 15 Z, an appeal lay before the High Court on any question of fact or law arising out of such order the amendment had curtailed and restricted the right of appeal since the appeal to this Court would now lie on any question of law arising out of such order. Consequently, this Court noted:41…. Accordingly, by the amendment, the earlier appellate package stands reduced, because under the amended Section 15-Z, it is not open to an appellant, to agitate an appeal on facts. That being the position, it is not possible for us to accept the contention advanced at the hands of the learned counsel for the appellant, that the amendment to Section 15-Z of the SEBI Act, envisages only an amendment of the forum, where the second appeal would lie. In our considered view, the amendment to Section 15-Z of the SEBI Act, having reduced the appellate package, adversely affected the vested appellate right of the litigant concerned….While noting that this position would be subject to an amendment providing to the contrary, this Court held that Section 32 which provided the repeal and savings clause did not indicate a contrary intent. Hence, the appellate remedy which was available prior to the amendment of Section 15 Z would, in the view of this Court continue to be available despite the amendment. Moreover, this Court held that neither the date of filing the appeal nor its hearing was of any relevance since the right to an appellate remedy becomes vested when the lis is initiated. The contention of the appellant that in the absence of a savings clause the pending proceedings could not be deemed to have been saved was rejected by placing reliance on the decision in Ambalal Sarabhai(supra):44…. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Ltd. case [Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co., (2001) 8 SCC 397 ] , it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15-Z) would not be affected in any manner…Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Sections 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallised on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected….As regards the decisions inter alia in Hitendra Vishnu Thakur(supra) and Maria Cristina(supra), this Court held that the principle that the forum is a procedural matter and that an amendment which alters the forum would apply retrospectively cannot be doubted but the same is not an absolute rule. On this aspect, the Bench relied upon the decision in Dhadi Sahu(supra) in support of the principle that an amendment of a forum would not necessarily be an issue of procedure.45. Having concluded in the manner expressed in the foregoing paragraphs, it is not necessary for us to examine the main contention, advanced at the hands of the learned counsel for the appellant, namely, that the amendment to Section 15-Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15-Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, the learned counsel for the appellant had placed reliance on the decisions rendered by this Court in Maria Cristina De Souza Sodder [Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92 ] , Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 ] and Thirumalai Chemicals Ltd. [Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458] cases to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Dhadi Sahu case [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] , wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29-10-2002, would have to be accepted as vested, and must be adjudicated accordingly.The conclusion of this Court was held to be in accordance with the mandate of Section 6 of the General Clauses Act. The appeals which had been filed by SEBI before the High Court were therefore held to be maintainable.39. We have already noticed the earlier decision of Justice J S Khehar in Videocon International (supra). Subsequent to the aforesaid decision, in Securities and Exchange of Board of India v. Classic Credit Limited (2018) 13 SCC 1 , a two judge bench of this Court, speaking through Justice Khehar, considered a claim for transfer of pending proceedings under the SEBI Act 1992. At the time when the complaints were filed under Section 26(2), the accused was required to be tried by a Metropolitan Magistrate (or a JMFC). Section 24(1) as it existed prior to the amendment read as follows:24. Offences.—(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules or regulations made thereunder, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.(2) If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both.40. After the amendment Section 24(1) envisaged a punishment for a term of imprisonment which may extend to ten years or with fine which may extend to rupees 25 crores. As a result of the amendment of Section 26(2) it came to be stipulated that no court inferior to that of a Court of Sessions shall try any offence punishable under the Act. After the 2002 amendment all pending cases before the Metropolitan Magistrate or JMFC were committed to the Court of Sessions on the assumption that the amending Act retrospectively altered the forum for trial. When the issue of jurisdiction was being considered by the Bombay High Court, SEBI sought to rely upon a judgment of the Delhi High Court which had concluded that the amendment to Section 26 brought about only a change in forum and was only procedural. The Bombay High Court took a view contrary to the judgment of the Delhi High Court. During the pendency of the appeals before this Court, the SEBI Act was amended again by the omission of 26(2) and the insertion of Section 26 A to E from 18 July 2013. SEBI argued that since the impact of 2002 amendment had again been altered, all the pending cases would be required to be tried by a Special Court in terms of the 2014 Amendment. Section 26-B provided as follows:26-B. Offences triable by Special Courts.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act committed prior to the date of commencement of the Securities Laws (Amendment) Act, 2014 or on or after the date of such commencement, shall be taken cognizance of and tried by the Special Court established for the area in which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court concerned.41. SEBI argued before this Court that a change of the forum for trial was a matter of mere procedure and would therefore be retrospective, there being no express or implied intent either in the 2002 and 2014 Amendments that the amendments were intended to be of prospective effect. Justice JS Khehar speaking for the two judge Bench of this Court adverted to the decisions inter alia in New India Assurance(supra), Ramesh Kumar Soni(supra) and Hitendra Vishnu Thakur(supra), and observed in that context:49…In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra [New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840 ] ; SEBI v. Ajay Agarwal [SEBI v. Ajay Agarwal, (2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491] and Ramesh Kumar Soni v. State of M.P. [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340] , is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of forum of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 ]; Ranbir Yadav v. State of Bihar [Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728 ] and Kamlesh Kumar v. State of Jharkhand [Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460 : (2014) 6 SCC (Cri) 489] , as well as, a number of further judgments noted above.42. The above observations indicate the clear view of this Court that:(i) In the absence of a contrary intent express or implied, procedural amendments are presumed to be retrospective;(ii) A change in the forum of a trial is a procedural matter; and(iii) Since a change of forum is procedural, a statute which brings about the change is presumed to be retrospective in the absence of a contrary intent.43. Hence, the Court went on to observe that it had also no doubt ...that change of forum being procedural the amendment of the forum would operate retrospectively, irrespective of whether the offence allegedly committed by the accused was committed prior to the amendment( At para 50, page 68).44. However, the Bench was conscious of the contrary view in Dhadi Sahu(supra) and the conflicting interpretations in the decisions in Manujendra Dutt(supra), Mohd. Idris(supra), Ambalal Sarabhai(supra), Ramesh Kumar Soni(supra) and Videocon International(supra) (which the Bench adverted to in paragraphs 51 to 53 of its decision). Dealing with this line of authority, Chief Justice J S Khehar observed:54. From a perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention that change of forum could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystallized into a vested substantive right.The view which was formulated by the Court was that where a remedy has been availed of prior to the amendment then unless the amending provision mandates either expressly or by necessary implication, the transfer of proceedings to the forum introduced by the amendment, the forum as it exceeded prior to the amendment would continue to have jurisdiction:55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to the learned counsel for the private parties, unless the amending provision by express words, or by necessary implication, mandates the transfer of proceedings to the forum introduced by the amendment the forum postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to forum, where the court concerned, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision.Where, however, proceedings had already commenced before the amendment, a change in the forum of the trial would not affect pending actions unless a contrary intent is shown. This Court then scrutinized whether the amendments which were made in 2002 and 2014 expressed a contrary intent. The Court held that Section 26, as amended in 2002, left no room for doubt that the erstwhile forum ceases to have adjudicating authority and the newly created forum - the Court of Sessions would deal with all pending matters as well. As a result, the 2002 Amendment diverted jurisdiction from the Metropolitan Magistrates and JMFCs to try offences under the SEBI Act after the amendment became operational. Similarly, the 2014 Amendment grouped all offences together by providing that they would be tried by a Special Court whether committed prior to or after the amendment; no segregation being permissible. By the 2014 amendment, the function of taking cognizance had been vested with the Special Courts. This Court held that all pending matters where cognizance had been taken and proceedings had commenced before the Court of Sessions would not be affected. In conclusion, this Court observed:79. In view of the consideration recorded hereinabove, we are of the view, that the forum for trial earlier vested in the Court of Metropolitan Magistrate (or Judicial Magistrate of the First Class) was retrospectively amended, inasmuch as, the forum of trial after the 2002 Amendment Act was retrospectively changed to the Court of Session. In this view of the matter, the trials even in respect of offences allegedly committed before 29-10-2002 (the date with effect from which the 2002 Amendment Act became operational), whether in respect whereof trial had or had not been initiated, would stand jurisdictionally vested in a Court of Session. And likewise, trials of offences under the SEBI Act, consequent upon the 2014 Amendment Act (which became operational, with effect from 18-7-2013) would stand jurisdictionally transferred for trial to a Special Court, irrespective of whether the offence under the SEBI Act was committed before 29-10-2002 and/or before 18- 7-2013 (the date with effect from which the 2014 Amendment Act became operational), and irrespective of the fact whether trial had or had not been initiated.Accordingly, the view of the Delhi High Court in transferring pending proceedings was affirmed while that taken by the Bombay High Court was set aside.48. We will now advert to a few High Court decisions which have come to varying conclusions due to the ambiguity introduced in the position of law by Dhadi Sahu(supra) vis-à-vis Maria Cristina(supra) and New India Assurance(supra) by creating an exception to the rule that a change of forum is purely a procedural matter. In Delhi High Court Bar Association v. Court of Delhi ILR (1994) 1 Del 271, the original jurisdiction of the High Court was increased from Rs. 1 lakh to Rs. 5 lakhs. The appellants in that case sought to question the transfer of proceedings from the High Court to the lower court. The High Court noted that the Amending Acts object was to reduce the burden on the High Court and speedy disposal of cases. The High Court held that change of forum is a procedural matter and not a vested right. A Division Bench of the High Court speaking through Justice DP Wadhwa noted the ambiguity created by Dhadi Sahu(supra) and applied the principle in New India Assurance(supra) and Maria Cristina(supra) to direct transfer of pending proceedings as a change of forum owing to amendments to the pecuniary jurisdiction is a change in procedural law that is usually retrospective:29. In New India Insurance Co. Ltd. v. Smt. Shanti Misra ((1975) 2 SCC 840 : AIR 1976 S.C. 237)(9) the Supreme Court did express the opinion that change of forum is a change of procedural law and not a substantive law. In Maria Cristina De Souza Sodder v. Amria Zurana Percira Pinto, (1979) 1 SCC 92 (10), the court held that right of appeal though was a substantive right and got vested in the litigant no sooner the lis was commenced in the court of the first instance and such right would not be affected by any repeal of an enactment conferring such right unless the repealing Act either expressly or by necessary implication took away such right. The court also said that the forum where such appeal could be lodged was a procedural matter and therefore the appeal the right to which had arisen under the repealing Act would have to be lodged in a forum provided for by the repealing Act. In Mithilesh Kumari v. Prem Behari Khare, (1989) 2 SCC 95 : AIR 1989 S.C. 1247 (11), the Supreme Court said that even vested right could be taken away and said that where remedy is barred the right became unenforceable. The decision of the Supreme Court in Commissioner of Income Tax, Orissa v. Shri Dhadi Sahu, JT 1992 (6) S.C. 714, would appear to be somewhat in conflict with its earlier decision but this judgment though holds that forum of appeal is a vested right to be followed before a particular forum and that right becomes vested when the proceedings are initiated but that vested right would not continue if the legislature by express words or by necessary implications so indicates. The Full Bench of the Punjab High Court in Gordhan Das Baldev Das v. The Governor General in Council, AIR 1952 Punjab 103 (FB) (12), had also said that such a vested right of appeal to a particular forum could be taken away by a later statute if the intention of the legislature was clearly manifested in the later Act.53. In considering the myriad precedents that have interpreted the impact of a change in forum on pending proceedings and retrospectivity- a clear position of law has emerged: a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory interpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the statute. This position emerges from the decisions in New India Assurance(supra), Maria Cristina(supra), Hitendra Kumar Thakur(supra), Ramesh Kumar Soni(supra) and Sudhir G Angur(supra). More recently, this position has been noted in a three judge Bench decision of this Court in Manish Kumar v. Union of India(Writ Petition (C) No. 26 of 2020, decided on 19 January 2021 (Supreme Court of India)). However, there was a deviation by a two judge bench decision of this Court in Dhadi Sahu(supra), which overlooked the decision of a larger three judge bench in New India Assurance(supra) and of a co-ordinate two judge bench in Maria Cristina(supra). The decision in Dhadi Sahu(supra) propounded a position that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal. In taking this view, the two judge bench did not consider binding decisions. Dhadi Sahu(supra) failed to consider that the saving of pending proceedings in Mohd. Idris(supra) and Manujendra Dutt(supra) was a saving of vested rights of the litigants that were being impacted by the repealing acts therein, and not because a right to forum is accrued once proceedings have been initiated. Thereafter, a line of decisions followed Dhadi Sahu(supra), to hold that a litigant has a crystallized right to a forum once proceedings have been initiated. A litigants vested right (including the right to an appeal) prior to the amendment or repeal are undoubtedly saved, in addition to substantive rights envisaged under Section 6 of the General Clauses Act. This protection does not extend to pure matters of procedure. Repeals or amendments that effect changes in forum would ordinarily affect pending proceedings, unless a contrary intention appears from the repealing or amending statute.54. It is relevant to note in this context that the decision in Ambalal Sarabhai(supra) saved proceedings in relation to a benefit which although not vested, accrued to the landlord to evict the tenant by virtue of a proviso to a Section which accorded protection to the tenant from ejectment. This Court reasoned that since the right of the landlord flows from a Section which protects the tenant, it cannot be enlarged into a vested right. However, Ambalal Sarabhai(supra) did not enunciate an absolute proposition that the right to institute proceedings at a particular forum is an accrued right, let alone a vested right. The dictum that a change of forum is a procedural matter is not altered by the decision of this Court in Ambalal Sarabhai(supra) which sought to differentiate between vested rights and accrued rights, the latter being protected under Section 6(c) of the General Clauses Act, the proceedings in relation to which are protected under Section 6(e).64. Having stated the above position, we need to harmonize it with the principle that the right to a forum is not an accrued right, as discussed in Part C of this judgement. Simply put, while Section 6(e) of the General Clauses Act protects the pending legal proceedings for the enforcement of an accrued right from the effect of a repeal, this does not mean that the legal proceedings at a particular forum are saved from the effects from the repeal. The question whether the pending legal proceedings are required to be transferred to the newly created forum by virtue of the repeal would still persist. As discussed, this Court in New India Assurance(supra) and Maria Christina(supra) has held that forum is a matter pertaining to procedural law and therefore the litigant has to pursue the legal proceedings at the forum created by the repealing act, unless a contrary intention appears. This principle would also apply to pending proceedings, as observed in Ramesh Kumar Soni(supra), Hitendra Kumar Thakur(supra) and Sudhir G Angur(supra). In this backdrop, what is relevant to ascertain is whether a contrary intent to the general rule of retrospectivity has been expressed under the Act of 2019 to continue the proceedings at the older forum.65. Now, in considering the expression of intent in the repealing enactment in the present case, it is apparent that there is no express language indicating that all pending cases would stand transferred to the fora created by the Act of 2019 by applying its newly prescribed pecuniary limits. In deducing whether there is a contrary intent, the legislative scheme and procedural history may provide a relevant insight into the intention of the legislature.66. The Act of 2019, as indicated by its long title, is enacted to provide for protection of the interests of consumers. The Statement of Objects and Reasons took note of the tardy disposal of cases under the erstwhile legislation. Thus, the necessity of inducing speed in disposal was to protect the rights and interests of consumers. The Act of 2019 has taken note of the evolution of consumer markets by the proliferation of products and services in light of global supply chains, e- commerce and international trade. New markets have provided a wider range of access to consumers. But at the same time, consumers are vulnerable to exploitation through unfair and unethical business practices. The Act has sought to address the myriad and constantly emerging vulnerabilities of the consumers. The recurring theme in the new legislation is the protection of consumers which is sought to be strengthened by procedural interventions such as strengthening class actions and introducing mediation as an alternate forum of dispute resolution.67. In this backdrop, something specific in terms of statutory language - either express words or words indicative of a necessary intendment would have been required for mandating the transfer of pending cases. One can imagine the serious hardship that would be caused to the consumers, if cases which have been already instituted before the NCDRC were required to be transferred to the SCDRCs as a result of the alteration of pecuniary limits by the Act of 2019. A consumer who has engaged legal counsel at the headquarters of the NCDRC would have to undertake a fresh round of legal representation before the SCDRC incurring expense and engendering uncertainty in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred.68. It would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation. Ironically, the objection which has been raised in the present case to the continued exercise of jurisdiction by the NCDRC in regard to the consumer complaint filed by the appellant is by the developer who is the respondent herein. It is a developer who opposed the continuation of the proceedings before the NCDRC on the ground that under the new consumer legislation the pecuniary limits of the jurisdiction exercisable by the NCDRC have been enhanced and the complaint filed by the appellant which was validly instituted under the erstwhile law should be transferred to the SCDRC. Such a course of action will result in thousands of cases being transferred across the country, from the NCDRC to the SCDRCs and from the SCDRCs to the District Commission.The above data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld. This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication. The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation. The legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to the new pecuniary limits set up for the fora established by the new law, were that to be its intention. The omission, when contextualized against the statutory scheme, portends a contrary intention to protect pending proceedings through Section 107(2) of the Act of 2019. This intention appears likely, particularly in light of previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.(Consumer Case No. 286 of 2000 (NCDRC)) construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran(Revision Petitions Nos 400 to 402 of 1993 (NCDRC)), where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu(supra)]. Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora.70. It is accepted, that in defining the jurisdiction of the District Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to entertain complaints. A similar provision is contained in Section 47 and Section 58 in regard to the SCDRC and NCDRC. The expression entertain has been considered in a two judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives(Hindusthan Commercial Bank; (1971) 3 SCC 124 ), in the context of the provisions of Order XXI Rule 90 of the CPC. The Court has accepted that the expression entertain means to adjudicate upon or proceed to consider on merits. In Nusli Neville(supra), while considering the provisions of Section 9A of the CPC as inserted by a Maharashtra Amendment, a two judge Bench followed the exposition in Hindusthan Commercial Bank(supra). Undoubtedly, the expression entertain has been construed in the context of Section 9A of the Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of this Court in Nusli Wadia(supra) to mean to adjudicate upon or to proceed to consider on merits. Sections 34, 47 and 58 similarly indicate that the respective consumer fora can entertain complaints within the pecuniary limits of their jurisdiction. These provisions will undoubtedly apply to complaints which were instituted after the Act of 2019 came into force. However, the mere use of the word entertain in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the Act of 2019 or under Section 106 of the Act of 2019 which is a power to remove difficulties for a period of two years after the commencement of the Act of 2019. | 1 | 25,902 | 12,016 | ### Instruction:
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in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred. 68. It would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation. Ironically, the objection which has been raised in the present case to the continued exercise of jurisdiction by the NCDRC in regard to the consumer complaint filed by the appellant is by the developer who is the respondent herein. It is a developer who opposed the continuation of the proceedings before the NCDRC on the ground that under the new consumer legislation the pecuniary limits of the jurisdiction exercisable by the NCDRC have been enhanced and the complaint filed by the appellant which was validly instituted under the erstwhile law should be transferred to the SCDRC. Such a course of action will result in thousands of cases being transferred across the country, from the NCDRC to the SCDRCs and from the SCDRCs to the District Commission. 69. Data drawn from annual reports of the Union Ministry of Consumer Affairs indicates pendency from financial year 2015-16 to financial year 2019-20: Report for FY 2015-16 (figures as on 31.12.2015)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004604_AR_2015- 16.pdf , page 34) TABLE Report for FY 2016-17 (figures as on 31.12.2016)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004643_AR_2016- 17.pdf , page 47) TABLE Report for FY 2017-18 (figures as on 29.01.2018)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004742_AR_2017- 18.pdf , page 49) TABLE Report for FY 2018-19 (figures as on 31.03.2019)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/_. , page 41) TABLE Report for FY 2019-20 (figures as on 31.10.2019)(https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1596167686_Annual%20Report%202019-20.pdf page 45) TABLE The above data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld. This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication. The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation. The legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to the new pecuniary limits set up for the fora established by the new law, were that to be its intention. The omission, when contextualized against the statutory scheme, portends a contrary intention to protect pending proceedings through Section 107(2) of the Act of 2019. This intention appears likely, particularly in light of previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.(Consumer Case No. 286 of 2000 (NCDRC)) construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran(Revision Petitions Nos 400 to 402 of 1993 (NCDRC)), where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu(supra)]. Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora. 70. It is accepted, that in defining the jurisdiction of the District Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to entertain complaints. A similar provision is contained in Section 47 and Section 58 in regard to the SCDRC and NCDRC. The expression entertain has been considered in a two judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives(Hindusthan Commercial Bank; (1971) 3 SCC 124 ), in the context of the provisions of Order XXI Rule 90 of the CPC. The Court has accepted that the expression entertain means to adjudicate upon or proceed to consider on merits. In Nusli Neville(supra), while considering the provisions of Section 9A of the CPC as inserted by a Maharashtra Amendment, a two judge Bench followed the exposition in Hindusthan Commercial Bank(supra). Undoubtedly, the expression entertain has been construed in the context of Section 9A of the Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of this Court in Nusli Wadia(supra) to mean to adjudicate upon or to proceed to consider on merits. Sections 34, 47 and 58 similarly indicate that the respective consumer fora can entertain complaints within the pecuniary limits of their jurisdiction. These provisions will undoubtedly apply to complaints which were instituted after the Act of 2019 came into force. However, the mere use of the word entertain in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the Act of 2019 or under Section 106 of the Act of 2019 which is a power to remove difficulties for a period of two years after the commencement of the Act of 2019. F Summation
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a necessary intendment would have been required for mandating the transfer of pending cases. One can imagine the serious hardship that would be caused to the consumers, if cases which have been already instituted before the NCDRC were required to be transferred to the SCDRCs as a result of the alteration of pecuniary limits by the Act of 2019. A consumer who has engaged legal counsel at the headquarters of the NCDRC would have to undertake a fresh round of legal representation before the SCDRC incurring expense and engendering uncertainty in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred.68. It would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation. Ironically, the objection which has been raised in the present case to the continued exercise of jurisdiction by the NCDRC in regard to the consumer complaint filed by the appellant is by the developer who is the respondent herein. It is a developer who opposed the continuation of the proceedings before the NCDRC on the ground that under the new consumer legislation the pecuniary limits of the jurisdiction exercisable by the NCDRC have been enhanced and the complaint filed by the appellant which was validly instituted under the erstwhile law should be transferred to the SCDRC. Such a course of action will result in thousands of cases being transferred across the country, from the NCDRC to the SCDRCs and from the SCDRCs to the District Commission.The above data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld. This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication. The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation. The legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to the new pecuniary limits set up for the fora established by the new law, were that to be its intention. The omission, when contextualized against the statutory scheme, portends a contrary intention to protect pending proceedings through Section 107(2) of the Act of 2019. This intention appears likely, particularly in light of previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.(Consumer Case No. 286 of 2000 (NCDRC)) construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran(Revision Petitions Nos 400 to 402 of 1993 (NCDRC)), where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu(supra)]. Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora.70. It is accepted, that in defining the jurisdiction of the District Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to entertain complaints. A similar provision is contained in Section 47 and Section 58 in regard to the SCDRC and NCDRC. The expression entertain has been considered in a two judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives(Hindusthan Commercial Bank; (1971) 3 SCC 124 ), in the context of the provisions of Order XXI Rule 90 of the CPC. The Court has accepted that the expression entertain means to adjudicate upon or proceed to consider on merits. In Nusli Neville(supra), while considering the provisions of Section 9A of the CPC as inserted by a Maharashtra Amendment, a two judge Bench followed the exposition in Hindusthan Commercial Bank(supra). Undoubtedly, the expression entertain has been construed in the context of Section 9A of the Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of this Court in Nusli Wadia(supra) to mean to adjudicate upon or to proceed to consider on merits. Sections 34, 47 and 58 similarly indicate that the respective consumer fora can entertain complaints within the pecuniary limits of their jurisdiction. These provisions will undoubtedly apply to complaints which were instituted after the Act of 2019 came into force. However, the mere use of the word entertain in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the Act of 2019 or under Section 106 of the Act of 2019 which is a power to remove difficulties for a period of two years after the commencement of the Act of 2019.
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Prem Raj Vs. D.L.F. Housing & Construction Pvt. Ltd. & Anr | is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action. The legal position has been stated by Lord Blanesburgh in pronouncing the opinion of the Judicial Committee in Ardeshir Mama v. Flora Sassoon, 55 Ind App 360 at p. 372 = (AIR 1928 PC 208 at p. 216) as follows :"Where the injured party sued at law for breach, going as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Thus it was that the commencement of an action for damages being. On the principle of such cases as Clough v. London and North Western Railway Co, (1872) LR7Ex.26, and Law v. Law (1905) 1 Ch 140,a definite election to treat the contract as at an end, no suit for specific performance whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had, by his election, precluded himself even from making the averment just referred to, proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon".It was pointed out by Lord Blanesburgh that the Indian law on the subject as contained in the Specific Relief Act, 1877 is not different from the English Law. At page 375 of the same Report (55 IA) = at pp. 217-218 of AIR) Lord Blanesburgh states :"Although, so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England [S. 24 (b) is the nearest], it seems invariably to have been recognised, and, on principle, their Lordships think rightly, that the Indian and the English requirements in this matter are the same; see e.g., Karsandas v. Chhotalal, 25 Bom LR 1037. 1050 = (AIR 1924 Bom 119 at pp. 124-125)."In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.6. It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision. | 0[ds]It is true that under Order 7, Rule 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act.There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision. | 0 | 2,724 | 650 | ### Instruction:
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is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action. The legal position has been stated by Lord Blanesburgh in pronouncing the opinion of the Judicial Committee in Ardeshir Mama v. Flora Sassoon, 55 Ind App 360 at p. 372 = (AIR 1928 PC 208 at p. 216) as follows :"Where the injured party sued at law for breach, going as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Thus it was that the commencement of an action for damages being. On the principle of such cases as Clough v. London and North Western Railway Co, (1872) LR7Ex.26, and Law v. Law (1905) 1 Ch 140,a definite election to treat the contract as at an end, no suit for specific performance whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had, by his election, precluded himself even from making the averment just referred to, proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon".It was pointed out by Lord Blanesburgh that the Indian law on the subject as contained in the Specific Relief Act, 1877 is not different from the English Law. At page 375 of the same Report (55 IA) = at pp. 217-218 of AIR) Lord Blanesburgh states :"Although, so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England [S. 24 (b) is the nearest], it seems invariably to have been recognised, and, on principle, their Lordships think rightly, that the Indian and the English requirements in this matter are the same; see e.g., Karsandas v. Chhotalal, 25 Bom LR 1037. 1050 = (AIR 1924 Bom 119 at pp. 124-125)."In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.6. It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.
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It is true that under Order 7, Rule 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act.There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.
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S.H.Rangappa Vs. State Of Karnataka | was any time prescribed for publication of the declaration this Court held as follows : 25. It is clear from the provisions set out above that the object of the notification under section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land under consideration is really needed for a public purpose and that the declaration is to operate as conclusive evidence to show that this is so. The conclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The notification which takes place under Section 6(2), set out above, follows and serves only as evidence of the declaration. That the declaration is shown by the fact that it has to be signed by a Secretary or other officer duly authorised. The declaration is in the form of an order. The notification is its publication and proof of its existence. It has been shown, in the case before us, that the deemed notification under Section 6 took place about three and a half months after the expiry of two years from the commencement of the ordinance of 1967. But, it is not argued on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time. 26. A look at the amendment introduced by the Section 4(2) of the Land Acquisition (Amendment and Validation) Act, 1967, shows that it is declaration which has to take place within two years of the expiry of the commencement of the ordinance which came into force on January 20, 1967. In fact, Section 4(2) of the Amendment Act of 1967, set out above, itself makes a distinction between a declaration under Section 6 and its notification under Section 4 of the principal Act. It does not say that no notification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to declarations made beyond the specified period. If the case of the appellant could be that no declaration was made within the prescribed time, it was his duty to prove it. He has not discharged that onus. 27. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result of a decision of this Court in the State of M.P. v. Vishnu Prasad Sharma holding successive notifications, under section 6, with excessive intervening delay between a notification under Section 4(2) and a declaration under Section 6, keeping the owner or other person entitled to compensation in suspense between a declaration and its notification is shown to exist, it may raise a suspicion about the existence of the declaration itself or about the bona fides of acquisition proceedings. This, however, is not the position in the case before us. Neither the existence nor the bona fides of the declaration have been questioned. It has not been either asserted or shown, as already mentioned, that no declaration was made within the period of time fixed for it. We, therefore, reject the last objection also. 10. While referring to the decisions of this Court in Bachhittar Singh v. The State of Punjab, 1962 Suppl. (3) SCR 713 as well as Krishi Utpadan Mandi Samiti and Anr. v. Makrand Singh and Ors., 1995(2) RCR(Civil) 146(SC) : 1995(2) SCC 497 and Eugenia Misquita and Ors. v. State of Goa and Ors., 1997(8) SCC 47, Mr. Sanghi, Learned senior counsel contended that the observations of this Court in Khadim Hussains case require reconsideration. With respect, we are unable to agree with this for more than one reason. Firstly, the decision in Khadim Hussains case was rendered by four Judges and the said decision is binding on us, apart form the fact that on the interpretation of the provisions of Section 6 we are in agreement with the views expressed by the Bench in that case. Secondly, as far as Bachhittar Singhs case is concerned that related to nothings on the file made by a Minister and the question which arose was whether that was on order which could have been regarded to have been passed. By referring to the provisions of Article 166 of the Constitution of India, this Court held that the said decision would not be regarded as an order of the Government. In Krishi Utpadans case and Eugenias case there was no reference made to the binding decision of this Court in Khadim Hussains case. Even otherwise, in both these cases, declaration under Section 6 had been published within one year of the notification under Section 4 and the question in the form in which it has arisen for consideration in the instant case did not arise there. 11. Mr. Sanghi also drew our attention to the observations of this Court in Senjeeva Nagar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdul Bawahab, 1996(2) RCR(Civil) 76 (SC) : 1996(3) SCC 600. While referring to the various provisions of the Act at page 606, it was observed that the declaration should be within one year. Mr. Sanghi contends that this is a decision of three Judges which we should follow. We are unable to accept this for the reason that what arose for consideration before the Court in Senjeeva Nagars case was the provision of Section 4 as amended by the State of A.P. which fixed time limit of 40 days for giving public notice on the substance of a notification under Section 4(1). The Court was called upon in that case to consider whether a declaration under Section 6(1) was required to be published in a Gazette within one year of the publication of Section 4 Notification. Therefore, the aforesaid observation is only an orbiter and contrary to the decision of this Court of a larger Bench in Khadim Hussains case which decision has neither been referred to in the Senjeeva Nagars case or in the Krishi Utpadan Mandis case and in Eugenias case. | 0[ds]Pursuant to the issuance of the same, objections can be filed and after hearing the same, Section 6(1) enables the appropriate authority if it is satisfied, after considering the report made under Section 5A of the Act, that if any particular land is needed for a public purpose, then a declaration is to be made under the signature of an appropriate officer. Where notification under Section 4 is published after the commencement of the Land Acquisition Amendment Act, 1984, as in the present case, proviso (ii) requires that such a declaration shall not be made after the expiry of one year from the date of the publication of Section 4 notificationThe main purpose for the issuance of a declaration under Section 6 is provided byn (3), namely, that the declaration is conclusive evidence that the land is needed inter alia for a public purpose and after the making of the declaration the appropriate Government may acquire the land in the manner provided by the Act.n (2) requires the declaration to be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and in addition thereto the Collector is also required to cause public notice of the substance of the declaration to be given in the convenient places in the said localityIt is well known that after an order or declaration is made there can be a time gap between the making of the order or a declaration and its publication in the Official Gazette. Whereas the time limit for the making of an order is provided under Section 6(1), the legislature advisedly did not provide for any time limit in respect of the steps required to be taken undern (2) of Section 69. This view which we have expressed hereinabove finds support from a decision of a Bench of four Judges of this Court in the case of Khadim Hussain v. State of U.P. and Ors., 1976(1) SCC 843. The question which arose in that case related to the time within which the declaration made under Section 6(1) had to be published in the Gazette. | 0 | 3,052 | 397 | ### Instruction:
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was any time prescribed for publication of the declaration this Court held as follows : 25. It is clear from the provisions set out above that the object of the notification under section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land under consideration is really needed for a public purpose and that the declaration is to operate as conclusive evidence to show that this is so. The conclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The notification which takes place under Section 6(2), set out above, follows and serves only as evidence of the declaration. That the declaration is shown by the fact that it has to be signed by a Secretary or other officer duly authorised. The declaration is in the form of an order. The notification is its publication and proof of its existence. It has been shown, in the case before us, that the deemed notification under Section 6 took place about three and a half months after the expiry of two years from the commencement of the ordinance of 1967. But, it is not argued on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time. 26. A look at the amendment introduced by the Section 4(2) of the Land Acquisition (Amendment and Validation) Act, 1967, shows that it is declaration which has to take place within two years of the expiry of the commencement of the ordinance which came into force on January 20, 1967. In fact, Section 4(2) of the Amendment Act of 1967, set out above, itself makes a distinction between a declaration under Section 6 and its notification under Section 4 of the principal Act. It does not say that no notification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to declarations made beyond the specified period. If the case of the appellant could be that no declaration was made within the prescribed time, it was his duty to prove it. He has not discharged that onus. 27. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result of a decision of this Court in the State of M.P. v. Vishnu Prasad Sharma holding successive notifications, under section 6, with excessive intervening delay between a notification under Section 4(2) and a declaration under Section 6, keeping the owner or other person entitled to compensation in suspense between a declaration and its notification is shown to exist, it may raise a suspicion about the existence of the declaration itself or about the bona fides of acquisition proceedings. This, however, is not the position in the case before us. Neither the existence nor the bona fides of the declaration have been questioned. It has not been either asserted or shown, as already mentioned, that no declaration was made within the period of time fixed for it. We, therefore, reject the last objection also. 10. While referring to the decisions of this Court in Bachhittar Singh v. The State of Punjab, 1962 Suppl. (3) SCR 713 as well as Krishi Utpadan Mandi Samiti and Anr. v. Makrand Singh and Ors., 1995(2) RCR(Civil) 146(SC) : 1995(2) SCC 497 and Eugenia Misquita and Ors. v. State of Goa and Ors., 1997(8) SCC 47, Mr. Sanghi, Learned senior counsel contended that the observations of this Court in Khadim Hussains case require reconsideration. With respect, we are unable to agree with this for more than one reason. Firstly, the decision in Khadim Hussains case was rendered by four Judges and the said decision is binding on us, apart form the fact that on the interpretation of the provisions of Section 6 we are in agreement with the views expressed by the Bench in that case. Secondly, as far as Bachhittar Singhs case is concerned that related to nothings on the file made by a Minister and the question which arose was whether that was on order which could have been regarded to have been passed. By referring to the provisions of Article 166 of the Constitution of India, this Court held that the said decision would not be regarded as an order of the Government. In Krishi Utpadans case and Eugenias case there was no reference made to the binding decision of this Court in Khadim Hussains case. Even otherwise, in both these cases, declaration under Section 6 had been published within one year of the notification under Section 4 and the question in the form in which it has arisen for consideration in the instant case did not arise there. 11. Mr. Sanghi also drew our attention to the observations of this Court in Senjeeva Nagar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdul Bawahab, 1996(2) RCR(Civil) 76 (SC) : 1996(3) SCC 600. While referring to the various provisions of the Act at page 606, it was observed that the declaration should be within one year. Mr. Sanghi contends that this is a decision of three Judges which we should follow. We are unable to accept this for the reason that what arose for consideration before the Court in Senjeeva Nagars case was the provision of Section 4 as amended by the State of A.P. which fixed time limit of 40 days for giving public notice on the substance of a notification under Section 4(1). The Court was called upon in that case to consider whether a declaration under Section 6(1) was required to be published in a Gazette within one year of the publication of Section 4 Notification. Therefore, the aforesaid observation is only an orbiter and contrary to the decision of this Court of a larger Bench in Khadim Hussains case which decision has neither been referred to in the Senjeeva Nagars case or in the Krishi Utpadan Mandis case and in Eugenias case.
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### Explanation:
Pursuant to the issuance of the same, objections can be filed and after hearing the same, Section 6(1) enables the appropriate authority if it is satisfied, after considering the report made under Section 5A of the Act, that if any particular land is needed for a public purpose, then a declaration is to be made under the signature of an appropriate officer. Where notification under Section 4 is published after the commencement of the Land Acquisition Amendment Act, 1984, as in the present case, proviso (ii) requires that such a declaration shall not be made after the expiry of one year from the date of the publication of Section 4 notificationThe main purpose for the issuance of a declaration under Section 6 is provided byn (3), namely, that the declaration is conclusive evidence that the land is needed inter alia for a public purpose and after the making of the declaration the appropriate Government may acquire the land in the manner provided by the Act.n (2) requires the declaration to be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and in addition thereto the Collector is also required to cause public notice of the substance of the declaration to be given in the convenient places in the said localityIt is well known that after an order or declaration is made there can be a time gap between the making of the order or a declaration and its publication in the Official Gazette. Whereas the time limit for the making of an order is provided under Section 6(1), the legislature advisedly did not provide for any time limit in respect of the steps required to be taken undern (2) of Section 69. This view which we have expressed hereinabove finds support from a decision of a Bench of four Judges of this Court in the case of Khadim Hussain v. State of U.P. and Ors., 1976(1) SCC 843. The question which arose in that case related to the time within which the declaration made under Section 6(1) had to be published in the Gazette.
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BISWAJIT SUKUL Vs. DEO CHAND SARDA | the plaintiffs tenant in respect of the suit premises. In other words, it was held that the relationship of the landlord and tenant is established between the plaintiff and defendant No.1 in relation to the suit premises. So far as second part of issue No.4 is concerned, it was held against the plaintiff by answering that defendant No.1 is not a defaulter in payment of rent to the plaintiff. By answering these four issues, the Trial Court dismissed the plaintiffs suit. 9. The plaintiff felt aggrieved and filed first appeal before the Civil Judge No.1 (Silchar), Cachar being Title Appeal No.14/2000. It is pertinent to mention here that the defendants did not file any cross objection under Order 41 Rule 22 of Code of Civil Procedure (hereinafter referred to as ?the Code?) against any of the findings recorded by the Trial Court against the defendants in the appeal. 10. By judgment dated 14.08.2002, the first Appellate Court dismissed the appeal. The plaintiff felt aggrieved and filed revision in the Gauhati High Court. By impugned order, the High Court (Single Judge) dismissed the plaintiffs revision and affirmed the judgment of the First Appellate Court which gives rise to filing of the present appeal by way of special leave by the plaintiff in this Court. 11. Heard Mr. Manoj Goel, learned counsel for the appellant and Mr. Avijit Bhattacharjee, learned counsel for the respondents. 12. After hearing the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also the judgment of the First Appellate Court, remand the case to the First Appellate Court for deciding the first appeal on merits in accordance with law as directed hereinbelow. 13. In our considered opinion, the need to remand the case to the First Appellate Court has arisen for more than one reason as mentioned hereinbelow. 14. First, the First Appellate Court committed a jurisdictional error in deciding the legality and correctness of the first part of issue No. 4 on merits. 15. Mere perusal of the judgment of the Trial Court would go to show that while answering the issues, the Trial Court had divided issue No. 4 in two parts. So far as first part is concerned, it was in relation to the question as to whether defendant No.1 was the plaintiffs tenant or not.In other words, it was in relation to the question as to whether the plaintiff was able to prove the relationship of landlord and tenant between him and defendant No.1 in relation to suit premises. Indeed, this was one of the main questions involved in the suit. 16. This question, i.e., first part of issue No.4 was decided by the Trial Court in plaintiffs favour wherein it was held that defendant No.1 was the plaintiffs tenant. So far as second part of issue No.4 is concerned, it was in relation to the question as to whether defendant No.1 was a defaulter in payment of rent to the plaintiff. This question was answered by the Trial Court against the plaintiff and in defendant No.1?s favour wherein it was held that defendant No.1 did not commit any default in payment of rent to the plaintiff. It is for this reason, the suit was dismissed. 17. The plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No.4 and rightly so because it was already answered by the Trial Court in his favour.The First Appellate Court, therefore, could not examine the legality and correctness of this finding in plaintiff?s appeal unless it was challenged by the defendants by filing cross objection under Order 41 Rule 22 of the Code in the appeal. 18. As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiffs appeal and reverse it against the plaintiff. 19. Second, the High Court also committed the same mistake by not noticing the aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiffs revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff?s appeal. 20. In our opinion, the High Court should have noticed the aforementioned mistake and remanded the case to the First Appellate Court for deciding the plaintiff?s appeal afresh on merits confining its enquiry by the First Appellate Court to decide only the legality and correctness of those issues, which were decided by the Trial Court against the plaintiff and which led to the dismissal of suit. 21. In our opinion, in the light of what we have held above, we have no option but to set aside the impugned order and also the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the first appeal filed by the plaintiff (appellant herein) afresh on its merits only to examine the legality and correctness of the issues which were decided against the plaintiff by the Trial Court such as issue No. 3 and second part of issue No. 4. 22. We, however, make it clear, that since the defendants did not file any cross objection in the appeal under Order 41 Rule 22 of the Code, they are not allowed to file the cross objection at such belated stage taking advantage of the remand of the appeal to the First Appellate Court by this Court. | 1[ds]18. As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiffs appeal and reverse it against the. Second, the High Court also committed the same mistake by not noticingthe aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiffs revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff?s. In our opinion, the High Court should have noticed the aforementioned mistake and remanded the case to the First Appellate Court for deciding the plaintiff?s appeal afresh on merits confining its enquiry by the First Appellate Court to decide only the legality and correctness of those issues, which were decided by the Trial Court against the plaintiff and which led to the dismissal of. In our opinion, in the light of what we have held above,we have no option but to set aside the impugned order and also the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the first appeal filed by the plaintiff (appellant herein) afresh on its merits only to examine the legality and correctness of the issues which were decided against the plaintiff by the Trial Court such as issue No. 3 and second part of issue No.. We, however, make it clear, that since the defendants did notfile any cross objection in the appeal under Order 41 Rule 22 of the Code, they are not allowed to file the cross objection at such belated stage taking advantage of the remand of the appeal to the First Appellate Court by this Court. | 1 | 1,683 | 392 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the plaintiffs tenant in respect of the suit premises. In other words, it was held that the relationship of the landlord and tenant is established between the plaintiff and defendant No.1 in relation to the suit premises. So far as second part of issue No.4 is concerned, it was held against the plaintiff by answering that defendant No.1 is not a defaulter in payment of rent to the plaintiff. By answering these four issues, the Trial Court dismissed the plaintiffs suit. 9. The plaintiff felt aggrieved and filed first appeal before the Civil Judge No.1 (Silchar), Cachar being Title Appeal No.14/2000. It is pertinent to mention here that the defendants did not file any cross objection under Order 41 Rule 22 of Code of Civil Procedure (hereinafter referred to as ?the Code?) against any of the findings recorded by the Trial Court against the defendants in the appeal. 10. By judgment dated 14.08.2002, the first Appellate Court dismissed the appeal. The plaintiff felt aggrieved and filed revision in the Gauhati High Court. By impugned order, the High Court (Single Judge) dismissed the plaintiffs revision and affirmed the judgment of the First Appellate Court which gives rise to filing of the present appeal by way of special leave by the plaintiff in this Court. 11. Heard Mr. Manoj Goel, learned counsel for the appellant and Mr. Avijit Bhattacharjee, learned counsel for the respondents. 12. After hearing the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also the judgment of the First Appellate Court, remand the case to the First Appellate Court for deciding the first appeal on merits in accordance with law as directed hereinbelow. 13. In our considered opinion, the need to remand the case to the First Appellate Court has arisen for more than one reason as mentioned hereinbelow. 14. First, the First Appellate Court committed a jurisdictional error in deciding the legality and correctness of the first part of issue No. 4 on merits. 15. Mere perusal of the judgment of the Trial Court would go to show that while answering the issues, the Trial Court had divided issue No. 4 in two parts. So far as first part is concerned, it was in relation to the question as to whether defendant No.1 was the plaintiffs tenant or not.In other words, it was in relation to the question as to whether the plaintiff was able to prove the relationship of landlord and tenant between him and defendant No.1 in relation to suit premises. Indeed, this was one of the main questions involved in the suit. 16. This question, i.e., first part of issue No.4 was decided by the Trial Court in plaintiffs favour wherein it was held that defendant No.1 was the plaintiffs tenant. So far as second part of issue No.4 is concerned, it was in relation to the question as to whether defendant No.1 was a defaulter in payment of rent to the plaintiff. This question was answered by the Trial Court against the plaintiff and in defendant No.1?s favour wherein it was held that defendant No.1 did not commit any default in payment of rent to the plaintiff. It is for this reason, the suit was dismissed. 17. The plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No.4 and rightly so because it was already answered by the Trial Court in his favour.The First Appellate Court, therefore, could not examine the legality and correctness of this finding in plaintiff?s appeal unless it was challenged by the defendants by filing cross objection under Order 41 Rule 22 of the Code in the appeal. 18. As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiffs appeal and reverse it against the plaintiff. 19. Second, the High Court also committed the same mistake by not noticing the aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiffs revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff?s appeal. 20. In our opinion, the High Court should have noticed the aforementioned mistake and remanded the case to the First Appellate Court for deciding the plaintiff?s appeal afresh on merits confining its enquiry by the First Appellate Court to decide only the legality and correctness of those issues, which were decided by the Trial Court against the plaintiff and which led to the dismissal of suit. 21. In our opinion, in the light of what we have held above, we have no option but to set aside the impugned order and also the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the first appeal filed by the plaintiff (appellant herein) afresh on its merits only to examine the legality and correctness of the issues which were decided against the plaintiff by the Trial Court such as issue No. 3 and second part of issue No. 4. 22. We, however, make it clear, that since the defendants did not file any cross objection in the appeal under Order 41 Rule 22 of the Code, they are not allowed to file the cross objection at such belated stage taking advantage of the remand of the appeal to the First Appellate Court by this Court.
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18. As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiffs appeal and reverse it against the. Second, the High Court also committed the same mistake by not noticingthe aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiffs revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff?s. In our opinion, the High Court should have noticed the aforementioned mistake and remanded the case to the First Appellate Court for deciding the plaintiff?s appeal afresh on merits confining its enquiry by the First Appellate Court to decide only the legality and correctness of those issues, which were decided by the Trial Court against the plaintiff and which led to the dismissal of. In our opinion, in the light of what we have held above,we have no option but to set aside the impugned order and also the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the first appeal filed by the plaintiff (appellant herein) afresh on its merits only to examine the legality and correctness of the issues which were decided against the plaintiff by the Trial Court such as issue No. 3 and second part of issue No.. We, however, make it clear, that since the defendants did notfile any cross objection in the appeal under Order 41 Rule 22 of the Code, they are not allowed to file the cross objection at such belated stage taking advantage of the remand of the appeal to the First Appellate Court by this Court.
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Bai Nani and Others Vs. Manilal Lallubhai and Others | equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based on succession.5. The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint. The averment in the plaint is that on 24th January, 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family.6. There is no alternate claim that in the event of the partition being negatived the plaintiff would be entitled to 1/2 share of Bai Kashi by succession. The 3rd issue that was raised was whether on Bai Kashis death the appellants became entitled to 1/2 share in the whole suit-house. The trial court on that issue found that Bai Kashi became entitled to 1/2 share of her husband in the suit-house under the Hindu Womens Rights to Property Act, 1937. As her interest was only a limited interest known as Hindu Womens Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the Hindu Succession Act, 1956. On this basis the trial court was of the view that on the death of Bai Kashi her share would g o to the reversioners. On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full brothers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the plaintiff for 1/2 share should be decreed though there is no specific claim on the plea of separation and heirship. The defendant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widows estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession. The High Court has not dealt with this issue satisfactorily. The High Court after referring to the pleadings observed that the plaintiffs claimed 1/2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before t he trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashis death and therefore the plaintiff would be entitled to 1/3 share. After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether t he defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit-house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiffs suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point. This reference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly. | 1[ds]It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not supported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based onreference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly. | 1 | 1,917 | 478 | ### 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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equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based on succession.5. The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint. The averment in the plaint is that on 24th January, 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family.6. There is no alternate claim that in the event of the partition being negatived the plaintiff would be entitled to 1/2 share of Bai Kashi by succession. The 3rd issue that was raised was whether on Bai Kashis death the appellants became entitled to 1/2 share in the whole suit-house. The trial court on that issue found that Bai Kashi became entitled to 1/2 share of her husband in the suit-house under the Hindu Womens Rights to Property Act, 1937. As her interest was only a limited interest known as Hindu Womens Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the Hindu Succession Act, 1956. On this basis the trial court was of the view that on the death of Bai Kashi her share would g o to the reversioners. On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full brothers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the plaintiff for 1/2 share should be decreed though there is no specific claim on the plea of separation and heirship. The defendant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widows estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession. The High Court has not dealt with this issue satisfactorily. The High Court after referring to the pleadings observed that the plaintiffs claimed 1/2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before t he trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashis death and therefore the plaintiff would be entitled to 1/3 share. After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether t he defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit-house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiffs suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point. This reference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly.
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It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not supported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based onreference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly.
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The Dunlop Rubber Co Vs. Workmen | of their own Union was not lost upon the Company and the refusal to allow representation on these terms cannot be characterised as a denial of natural justice or amounting to unfair play. If the Company had been asked that the workmen wished to be represented by a workman of their own choice without the additional qualification about Union No. 4145 it is possible that the Company might have acceded to the request. We think, the Company might have asked the workmen to delete all reference to Union No. 4145 and allwoed them to have a representative of their own choice in the special circumstances of this dispute. But we cannot say that the action of the Enquiry Officer was for that reason illegal or amounted to a denial of natural justice. In this connection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employees should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. But as we have just indicated, in the circumstances of this case, we have no doubt that the failure of the Enquiry Officer to accede to the request made by the employees, does not introduce any serious defect in the enquiry itself, and so, we have no hesitation in holding that the result of the said enquiry cannot be successfully challenged in the present proceedings.11. It follows that the two main reasons for interfering with the order of dismissal do not really exist. The charge was under cls. (VIII) and (XVI) of Standing Order No. 10. It said so and its meaning was quite clear to the workmen who, according to plan, were definitely going slow from January 12, 1960 when the Dual Auto Mills passed into the control of workmen belonging to Union No. 4145. The demand of the workmen, couched as it was, could not be granted by the Enquiry Officer, because the Standing Officers did not permit representation by a member of any but a recognised Union. The additional reasons given by the Tribunal that later the demands of this Union were accepted in respect of wages can hardly justify the action of these workmen in going on an illegal strike and in declining to resume work unless what they demanded was done. There was thus justification for the order passed by the Company. It is on record that the Dual Auto Mills perform a key operation and no rubber goods can be produced without the batches being available. By their action these workmen slowed down production of every category and by their refusal to work when asked to go back to work caused enormous loss to the Company. The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union.12. It is contended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but not the workmen of the Dual Auto Mills. The discrimination if any, was made by Union No. 4145 which nominated those who should be taken back in service. There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were not sending out a cold mixture as alleged but that the Dual Auto Mills workmen were taking more time on their own operation. The production was slowed down not by the Banbury Mill operators but by the Dual Auto Mill operators. In other words, the Banbury Mill workmen, though they joined in the strike, did not probably join in the "go slow", but the Dual Auto Mill workmen not only started "go slow" but also led the strike affecting a large number of workmen. In any event, the workmen chosen for reinstatement, were chosen by their own Union and it cannot be said that the Company made any discrimination.13. We are satisfied that in this case the Tribunal was not justified n interfering. It has acted as a Court of appeal in scrutinizing the evidence and in reaching conclusions of its own. We are also satisfied that the conclusions reached by it were not justified on the evidence in the case. In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted.14. It is a pity that these workmen, who, on their own admission were better paid than in any other organisation should lose their job in an attempt to get an indirect recognition of their Union. But it cannot be helped because the Company must have a free hand in the internal management of its own affairs. No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair. There is nothing to indicate this. At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure contributed to this dispute. We have often noticed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace. It often turns out that this has adverse effect on Company itself. Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the non-recognition of Union No. 4145 was deliberate. But as that Union seems to be the stronger of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised. | 1[ds]We think, the Company might have asked the workmen to delete all reference to Union No. 4145 and allwoed them to have a representative of their own choice in the special circumstances of this dispute. But we cannot say that the action of the Enquiry Officer was for that reason illegal or amounted to a denial of natural justice. In this connection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employees should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. But as we have just indicated, in the circumstances of this case, we have no doubt that the failure of the Enquiry Officer to accede to the request made by the employees, does not introduce any serious defect in the enquiry itself, and so, we have no hesitation in holding that the result of the said enquiry cannot be successfully challenged in the present proceedings.11. It follows that the two main reasons for interfering with the order of dismissal do not really exist. The charge was under cls. (VIII) and (XVI) of Standing Order No. 10. It said so and its meaning was quite clear to the workmen who, according to plan, were definitely going slow from January 12, 1960 when the Dual Auto Mills passed into the control of workmen belonging to Union No. 4145. The demand of the workmen, couched as it was, could not be granted by the Enquiry Officer, because the Standing Officers did not permit representation by a member of any but a recognised Union. The additional reasons given by the Tribunal that later the demands of this Union were accepted in respect of wages can hardly justify the action of these workmen in going on an illegal strike and in declining to resume work unless what they demanded was done. There was thus justification for the order passed by the Company. It is on record that the Dual Auto Mills perform a key operation and no rubber goods can be produced without the batches being available. By their action these workmen slowed down production of every category and by their refusal to work when asked to go back to work caused enormous loss to the Company. The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union.12. It is contended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but not the workmen of the Dual Auto Mills. The discrimination if any, was made by Union No. 4145 which nominated those who should be taken back in service. There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were not sending out a cold mixture as alleged but that the Dual Auto Mills workmen were taking more time on their own operation. The production was slowed down not by the Banbury Mill operators but by the Dual Auto Mill operators. In other words, the Banbury Mill workmen, though they joined in the strike, did not probably join in the "go slow", but the Dual Auto Mill workmen not only started "go slow" but also led the strike affecting a large number of workmen. In any event, the workmen chosen for reinstatement, were chosen by their own Union and it cannot be said that the Company made any discrimination.13. We are satisfied that in this case the Tribunal was not justified n interfering. It has acted as a Court of appeal in scrutinizing the evidence and in reaching conclusions of its own. We are also satisfied that the conclusions reached by it were not justified on the evidence in the case. In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted.14. It is a pity that these workmen, who, on their own admission were better paid than in any other organisation should lose their job in an attempt to get an indirect recognition of their Union. But it cannot be helped because the Company must have a free hand in the internal management of its own affairs. No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair. There is nothing to indicate this. At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure contributed to this dispute. We have often noticed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace. It often turns out that this has adverse effect on Company itself. Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the non-recognition of Union No. 4145 was deliberate. But as that Union seems to be the stronger of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised.The Tribunal was wrong in almost all its conclusions. It was wrong in holding that the workmen were not charged with "go slow" action and, therefore, could not be dismissed on the finding that they were guilty of "go slow". Under the Standing Orders of the Company "go slow" is a majorClauses (VIII) and (XVI) of Standing Order 10 deal with insubordination or disobedience or failure whether alone or in combination with others, to carry out any lawful and reasonable or proper order of a Superior (cl. VIII) and engaging or inciting others to engage in irreglular or unjustified or illegal strikes, malingerin g or slowing down of work (cl.whether the Banbury Mill cooled it and the Dual Auto Mills were required to reheat it or the Dual Auto Mills delayed the operations, it is clear that the motivating force behind it was the action of Union No. 4145 to force the hands of the Company in support of their demands. It is sufficient to say that after the new workmen had got trained in the working of the Dual Auto Mills the production again reached the same number of batches and after the figure was even better though the festooner continued in operation. We are satisfied that the workmen were going slow from January 12, 1960, that the charge of "go slow" was incorporated in theread with the warning letter and that it was fully substantiated. This amounted tounder Standing Order No.10 and was not a minor offence as contended before us by their learned counsel. The minor offences deal with conduct of a very different kind.9. The Tribunal was also wrong in thinking that there was a denial of natural justice because the workmen were refused the assistance of a representative of their own Union. Under the Standing Orders it is clearly provided that at such enquiries only a representative of a Union which is registered under the Indian Trade Union Act and recognised by the Company can assist. Technically, therefore, the demand of the workmen that they should be represented by their own Union could not besuch circumstances it is idle to expect that these workmen would have chosen to be represented by a member of the rival Union and the Company might well have considered their demand to be represented by any other workman of their choice. The workmen, however, insisted that the representation should be in the capacity of a representative of their own unrecognised Union. In other words, they were desiring recognition of their Union in an indirect way. | 1 | 3,754 | 1,478 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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of their own Union was not lost upon the Company and the refusal to allow representation on these terms cannot be characterised as a denial of natural justice or amounting to unfair play. If the Company had been asked that the workmen wished to be represented by a workman of their own choice without the additional qualification about Union No. 4145 it is possible that the Company might have acceded to the request. We think, the Company might have asked the workmen to delete all reference to Union No. 4145 and allwoed them to have a representative of their own choice in the special circumstances of this dispute. But we cannot say that the action of the Enquiry Officer was for that reason illegal or amounted to a denial of natural justice. In this connection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employees should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. But as we have just indicated, in the circumstances of this case, we have no doubt that the failure of the Enquiry Officer to accede to the request made by the employees, does not introduce any serious defect in the enquiry itself, and so, we have no hesitation in holding that the result of the said enquiry cannot be successfully challenged in the present proceedings.11. It follows that the two main reasons for interfering with the order of dismissal do not really exist. The charge was under cls. (VIII) and (XVI) of Standing Order No. 10. It said so and its meaning was quite clear to the workmen who, according to plan, were definitely going slow from January 12, 1960 when the Dual Auto Mills passed into the control of workmen belonging to Union No. 4145. The demand of the workmen, couched as it was, could not be granted by the Enquiry Officer, because the Standing Officers did not permit representation by a member of any but a recognised Union. The additional reasons given by the Tribunal that later the demands of this Union were accepted in respect of wages can hardly justify the action of these workmen in going on an illegal strike and in declining to resume work unless what they demanded was done. There was thus justification for the order passed by the Company. It is on record that the Dual Auto Mills perform a key operation and no rubber goods can be produced without the batches being available. By their action these workmen slowed down production of every category and by their refusal to work when asked to go back to work caused enormous loss to the Company. The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union.12. It is contended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but not the workmen of the Dual Auto Mills. The discrimination if any, was made by Union No. 4145 which nominated those who should be taken back in service. There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were not sending out a cold mixture as alleged but that the Dual Auto Mills workmen were taking more time on their own operation. The production was slowed down not by the Banbury Mill operators but by the Dual Auto Mill operators. In other words, the Banbury Mill workmen, though they joined in the strike, did not probably join in the "go slow", but the Dual Auto Mill workmen not only started "go slow" but also led the strike affecting a large number of workmen. In any event, the workmen chosen for reinstatement, were chosen by their own Union and it cannot be said that the Company made any discrimination.13. We are satisfied that in this case the Tribunal was not justified n interfering. It has acted as a Court of appeal in scrutinizing the evidence and in reaching conclusions of its own. We are also satisfied that the conclusions reached by it were not justified on the evidence in the case. In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted.14. It is a pity that these workmen, who, on their own admission were better paid than in any other organisation should lose their job in an attempt to get an indirect recognition of their Union. But it cannot be helped because the Company must have a free hand in the internal management of its own affairs. No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair. There is nothing to indicate this. At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure contributed to this dispute. We have often noticed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace. It often turns out that this has adverse effect on Company itself. Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the non-recognition of Union No. 4145 was deliberate. But as that Union seems to be the stronger of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised.
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was thus justification for the order passed by the Company. It is on record that the Dual Auto Mills perform a key operation and no rubber goods can be produced without the batches being available. By their action these workmen slowed down production of every category and by their refusal to work when asked to go back to work caused enormous loss to the Company. The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union.12. It is contended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but not the workmen of the Dual Auto Mills. The discrimination if any, was made by Union No. 4145 which nominated those who should be taken back in service. There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were not sending out a cold mixture as alleged but that the Dual Auto Mills workmen were taking more time on their own operation. The production was slowed down not by the Banbury Mill operators but by the Dual Auto Mill operators. In other words, the Banbury Mill workmen, though they joined in the strike, did not probably join in the "go slow", but the Dual Auto Mill workmen not only started "go slow" but also led the strike affecting a large number of workmen. In any event, the workmen chosen for reinstatement, were chosen by their own Union and it cannot be said that the Company made any discrimination.13. We are satisfied that in this case the Tribunal was not justified n interfering. It has acted as a Court of appeal in scrutinizing the evidence and in reaching conclusions of its own. We are also satisfied that the conclusions reached by it were not justified on the evidence in the case. In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted.14. It is a pity that these workmen, who, on their own admission were better paid than in any other organisation should lose their job in an attempt to get an indirect recognition of their Union. But it cannot be helped because the Company must have a free hand in the internal management of its own affairs. No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair. There is nothing to indicate this. At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure contributed to this dispute. We have often noticed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace. It often turns out that this has adverse effect on Company itself. Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the non-recognition of Union No. 4145 was deliberate. But as that Union seems to be the stronger of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised.The Tribunal was wrong in almost all its conclusions. It was wrong in holding that the workmen were not charged with "go slow" action and, therefore, could not be dismissed on the finding that they were guilty of "go slow". Under the Standing Orders of the Company "go slow" is a majorClauses (VIII) and (XVI) of Standing Order 10 deal with insubordination or disobedience or failure whether alone or in combination with others, to carry out any lawful and reasonable or proper order of a Superior (cl. VIII) and engaging or inciting others to engage in irreglular or unjustified or illegal strikes, malingerin g or slowing down of work (cl.whether the Banbury Mill cooled it and the Dual Auto Mills were required to reheat it or the Dual Auto Mills delayed the operations, it is clear that the motivating force behind it was the action of Union No. 4145 to force the hands of the Company in support of their demands. It is sufficient to say that after the new workmen had got trained in the working of the Dual Auto Mills the production again reached the same number of batches and after the figure was even better though the festooner continued in operation. We are satisfied that the workmen were going slow from January 12, 1960, that the charge of "go slow" was incorporated in theread with the warning letter and that it was fully substantiated. This amounted tounder Standing Order No.10 and was not a minor offence as contended before us by their learned counsel. The minor offences deal with conduct of a very different kind.9. The Tribunal was also wrong in thinking that there was a denial of natural justice because the workmen were refused the assistance of a representative of their own Union. Under the Standing Orders it is clearly provided that at such enquiries only a representative of a Union which is registered under the Indian Trade Union Act and recognised by the Company can assist. Technically, therefore, the demand of the workmen that they should be represented by their own Union could not besuch circumstances it is idle to expect that these workmen would have chosen to be represented by a member of the rival Union and the Company might well have considered their demand to be represented by any other workman of their choice. The workmen, however, insisted that the representation should be in the capacity of a representative of their own unrecognised Union. In other words, they were desiring recognition of their Union in an indirect way.
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N. Shivakumar Vs. State of Karnataka | finger prints on the neck of the deceased to connect the accused with the death of his wife. The learned amicus further submitted that PW1 has not immediately lodged any complaint on coming to know of the death of his sister and this type of reaction on the part of PW-1 also, according to learned amicus, is neither natural nor normal in the circumstances and the possibilities are more that the deceased suffered, in the normal course a natural death while sleeping and not on account of any violence committed on her body and that too by the accused. The learned counsel invited our attention to portions of the evidence of PWs. 1, 2, 3, 4 and 6 and also portions of the judgments of both the courts below to vindicate her stand on behalf of the appellant. The learned counsel appearing for the respondent-state adopted the reasoning of the courts below, to submit that this appeal in which leave has been granted under Article 136 of the Constitution of India, merit acceptance or warrants any interference, having regard to the concurrent findings of the courts below, supported by sufficient and acceptable materials.(5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed to PW-3, his neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted after post-mortem examination and the deposition of PW-6, the doctor, who conducted the post-mortem examination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of any cross-examination of the doctor who conducted the post-mortem examination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence of PW-3 also militate against his version in this regard. PW-3 has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused to PW-1, keeping in view of the fact that the accused had much confidence in PWs. 1 and 2, his brother-in-laws to tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it is PW-1 and PW-2 who were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred to PW-1 and PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made to PW-1 was relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence of PW-3 is very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of the accused-appellant by giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case. | 1[ds](5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed tohis neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted afterpostmortem examination andthe deposition ofthe doctor, who conducted theexamination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of anyof the doctor who conducted theexamination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence ofalso militate against his version in this regard.has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused tokeeping in view of the fact that the accused had much confidence in PWs. 1 and 2, histo tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it iswho were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred toand PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made towas relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence ofis very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of theby giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case. | 1 | 1,833 | 828 | ### 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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finger prints on the neck of the deceased to connect the accused with the death of his wife. The learned amicus further submitted that PW1 has not immediately lodged any complaint on coming to know of the death of his sister and this type of reaction on the part of PW-1 also, according to learned amicus, is neither natural nor normal in the circumstances and the possibilities are more that the deceased suffered, in the normal course a natural death while sleeping and not on account of any violence committed on her body and that too by the accused. The learned counsel invited our attention to portions of the evidence of PWs. 1, 2, 3, 4 and 6 and also portions of the judgments of both the courts below to vindicate her stand on behalf of the appellant. The learned counsel appearing for the respondent-state adopted the reasoning of the courts below, to submit that this appeal in which leave has been granted under Article 136 of the Constitution of India, merit acceptance or warrants any interference, having regard to the concurrent findings of the courts below, supported by sufficient and acceptable materials.(5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed to PW-3, his neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted after post-mortem examination and the deposition of PW-6, the doctor, who conducted the post-mortem examination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of any cross-examination of the doctor who conducted the post-mortem examination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence of PW-3 also militate against his version in this regard. PW-3 has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused to PW-1, keeping in view of the fact that the accused had much confidence in PWs. 1 and 2, his brother-in-laws to tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it is PW-1 and PW-2 who were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred to PW-1 and PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made to PW-1 was relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence of PW-3 is very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of the accused-appellant by giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case.
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(5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed tohis neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted afterpostmortem examination andthe deposition ofthe doctor, who conducted theexamination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of anyof the doctor who conducted theexamination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence ofalso militate against his version in this regard.has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused tokeeping in view of the fact that the accused had much confidence in PWs. 1 and 2, histo tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it iswho were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred toand PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made towas relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence ofis very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of theby giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case.
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Madanlal Vs. The State of Rajasthan and Ors | 1. Leave granted.2. This appeal is directed against the judgment and order dated 12.01.2015 passed by the High Court of Rajasthan in S.B. Civil Second Appeal No. 317 of 2008.3. Briefly stated, the facts of the case are:4. There was a dispute between the parties with regard to water and how it is to be given to the field of contesting parties. This dispute was taken to the Authorities under the Rajasthan Irrigation and Drainage Act, 1954 (for short the Act). The Appellant lost before the said Authority.5. The Appellant, thereafter, filed a suit before the Trial Court challenging the order of the Appellate Authority which was dismissed. Aggrieved by the order of the Trial Court, the Appellant filed an appeal before the First Appellate Court, which was allowed. The private Respondents filed a Second Appeal in the High Court and the High Court set aside the judgment of the First Appellate Court and upheld the judgment of the Trial Court holding that the Civil Court could not entertain or deal such disputes.6. The High Court did not take into consideration Section 53 of the Act which reads as follows:"53. Settlement of reference as to mutual rights and liabilities of persons interested in water course.-(1) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water course, any such person may apply in writing to the Divisional Irrigation Officer stating the matter in dispute; and such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to enquire into the said matter and, after such enquiry, he shall pass his order thereon unless he transfers (as he is hereby empowered to do) the matter to the Collector who shall thereupon enquire into and pass his order on the said matter.(2) Such order shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made and shall thereafter remain in force until set aside by the decree in a Civil Court." 7. A bare perusal of Section 53 shows that if there is a difference between two or more persons with regard to rights and liabilities in respect of the use, construction or maintenance of a water courses, then the dispute has to be first referred to the Divisional Irrigation Officer, who after giving notice shall enquire the matter and pass an order. He can also transfer the matter to the Collector who may enquire into the matter and dispose it of. The appeal against the order of the Divisional Irrigation Officer lies to the Superintending Irrigation Officer.8. Section 53(2) is absolutely clear that the order passed by the Authorities under the Act would be final for any crop sown or growing when such order is made and shall remain in force until set aside by the decree of a Civil Court. This clearly implies that the Civil Court has jurisdiction to entertain and decide such a dispute. The only caveat is that the Civil Court shall not pass any order in respect of crops sown or growing in the land at the time of passing of the order.9. The High Court fell in error while holding that the Civil Court could not have set aside the suit. | 1[ds]7. A bare perusal of Section 53 shows that if there is a difference between two or more persons with regard to rights and liabilities in respect of the use, construction or maintenance of a water courses, then the dispute has to be first referred to the Divisional Irrigation Officer, who after giving notice shall enquire the matter and pass an order. He can also transfer the matter to the Collector who may enquire into the matter and dispose it of. The appeal against the order of the Divisional Irrigation Officer lies to the Superintending Irrigation Officer8. Section 53(2) is absolutely clear that the order passed by the Authorities under the Act would be final for any crop sown or growing when such order is made and shall remain in force until set aside by the decree of a Civil Court. This clearly implies that the Civil Court has jurisdiction to entertain and decide such a dispute. The only caveat is that the Civil Court shall not pass any order in respect of crops sown or growing in the land at the time of passing of the order9. The High Court fell in error while holding that the Civil Court could not have set aside the suit. | 1 | 626 | 225 | ### 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:
1. Leave granted.2. This appeal is directed against the judgment and order dated 12.01.2015 passed by the High Court of Rajasthan in S.B. Civil Second Appeal No. 317 of 2008.3. Briefly stated, the facts of the case are:4. There was a dispute between the parties with regard to water and how it is to be given to the field of contesting parties. This dispute was taken to the Authorities under the Rajasthan Irrigation and Drainage Act, 1954 (for short the Act). The Appellant lost before the said Authority.5. The Appellant, thereafter, filed a suit before the Trial Court challenging the order of the Appellate Authority which was dismissed. Aggrieved by the order of the Trial Court, the Appellant filed an appeal before the First Appellate Court, which was allowed. The private Respondents filed a Second Appeal in the High Court and the High Court set aside the judgment of the First Appellate Court and upheld the judgment of the Trial Court holding that the Civil Court could not entertain or deal such disputes.6. The High Court did not take into consideration Section 53 of the Act which reads as follows:"53. Settlement of reference as to mutual rights and liabilities of persons interested in water course.-(1) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water course, any such person may apply in writing to the Divisional Irrigation Officer stating the matter in dispute; and such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to enquire into the said matter and, after such enquiry, he shall pass his order thereon unless he transfers (as he is hereby empowered to do) the matter to the Collector who shall thereupon enquire into and pass his order on the said matter.(2) Such order shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made and shall thereafter remain in force until set aside by the decree in a Civil Court." 7. A bare perusal of Section 53 shows that if there is a difference between two or more persons with regard to rights and liabilities in respect of the use, construction or maintenance of a water courses, then the dispute has to be first referred to the Divisional Irrigation Officer, who after giving notice shall enquire the matter and pass an order. He can also transfer the matter to the Collector who may enquire into the matter and dispose it of. The appeal against the order of the Divisional Irrigation Officer lies to the Superintending Irrigation Officer.8. Section 53(2) is absolutely clear that the order passed by the Authorities under the Act would be final for any crop sown or growing when such order is made and shall remain in force until set aside by the decree of a Civil Court. This clearly implies that the Civil Court has jurisdiction to entertain and decide such a dispute. The only caveat is that the Civil Court shall not pass any order in respect of crops sown or growing in the land at the time of passing of the order.9. The High Court fell in error while holding that the Civil Court could not have set aside the suit.
### Response:
1
### Explanation:
7. A bare perusal of Section 53 shows that if there is a difference between two or more persons with regard to rights and liabilities in respect of the use, construction or maintenance of a water courses, then the dispute has to be first referred to the Divisional Irrigation Officer, who after giving notice shall enquire the matter and pass an order. He can also transfer the matter to the Collector who may enquire into the matter and dispose it of. The appeal against the order of the Divisional Irrigation Officer lies to the Superintending Irrigation Officer8. Section 53(2) is absolutely clear that the order passed by the Authorities under the Act would be final for any crop sown or growing when such order is made and shall remain in force until set aside by the decree of a Civil Court. This clearly implies that the Civil Court has jurisdiction to entertain and decide such a dispute. The only caveat is that the Civil Court shall not pass any order in respect of crops sown or growing in the land at the time of passing of the order9. The High Court fell in error while holding that the Civil Court could not have set aside the suit.
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The State of Uttar Pradesh and Ors Vs. Rajit Singh | same incident, namely, Assistant Engineer and Executive Engineer were exonerated and therefore applying the Doctrine of Equality, both, the Tribunal as well as the High Court have rightly set aside the order of punishment imposed by the Disciplinary Authority with respect to the alleged misconduct for which other employees came to be exonerated. 4.2 It is further submitted that even otherwise, the enquiry conducted was in total breach of principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the respondent – delinquent officer and therefore the entire departmental enquiry proceedings were vitiated. It is submitted that therefore the Tribunal has rightly set aside the order of punishment imposed by the Disciplinary Authority which is rightly not interfered by the High Court. 5. We have heard the learned counsel for the respective parties at length. 6. At the outset, it is required to be noted that the Enquiry Officer held the respondent – delinquent officer guilty for the misconduct alleged and the charges levelled against him of causing monetary loss to the extent of Rs. 22,48,964.42/- and other charges, which are held to be proved. Thereafter, the Disciplinary Authority imposed the punishment after giving the respondent opportunity to meet the findings recorded by the Enquiry Officer and thereafter imposed the punishment. The Tribunal set aside the order of punishment imposed by the Disciplinary Authority by mainly applying the Doctrine of Equality and by observing that as other officers involved in the incident were exonerated and/or no action was taken against them, therefore, no action was warranted against respondent also. The Tribunal has also observed and held that even otherwise, the enquiry proceedings were in breach of the principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not at all supplied to the delinquent officer. The order passed by the Tribunal has been confirmed by the High Court by the impugned judgment and order. 7. Now, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, we are of the firm view that on the aforesaid ground, the order of punishment could not have been set aside by the Tribunal and the High court. The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned - delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. Therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality. 8. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:- 16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727] , Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293] , U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]) . 9. From the impugned judgment and order passed by the High Court, it appears that when the aforesaid submission and the aforesaid decision was pressed into service, the High Court has not considered the same on the ground that the other officers involved in respect of the same incident are exonerated and/or no action is taken against them. Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable. | 1[ds]7. Now, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, we are of the firm view that on the aforesaid ground, the order of punishment could not have been set aside by the Tribunal and the High court. The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned - delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. Therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.8. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:-16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727] , Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293] , U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]) .9. From the impugned judgment and order passed by the High Court, it appears that when the aforesaid submission and the aforesaid decision was pressed into service, the High Court has not considered the same on the ground that the other officers involved in respect of the same incident are exonerated and/or no action is taken against them. Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable. | 1 | 1,994 | 744 | ### 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:
same incident, namely, Assistant Engineer and Executive Engineer were exonerated and therefore applying the Doctrine of Equality, both, the Tribunal as well as the High Court have rightly set aside the order of punishment imposed by the Disciplinary Authority with respect to the alleged misconduct for which other employees came to be exonerated. 4.2 It is further submitted that even otherwise, the enquiry conducted was in total breach of principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the respondent – delinquent officer and therefore the entire departmental enquiry proceedings were vitiated. It is submitted that therefore the Tribunal has rightly set aside the order of punishment imposed by the Disciplinary Authority which is rightly not interfered by the High Court. 5. We have heard the learned counsel for the respective parties at length. 6. At the outset, it is required to be noted that the Enquiry Officer held the respondent – delinquent officer guilty for the misconduct alleged and the charges levelled against him of causing monetary loss to the extent of Rs. 22,48,964.42/- and other charges, which are held to be proved. Thereafter, the Disciplinary Authority imposed the punishment after giving the respondent opportunity to meet the findings recorded by the Enquiry Officer and thereafter imposed the punishment. The Tribunal set aside the order of punishment imposed by the Disciplinary Authority by mainly applying the Doctrine of Equality and by observing that as other officers involved in the incident were exonerated and/or no action was taken against them, therefore, no action was warranted against respondent also. The Tribunal has also observed and held that even otherwise, the enquiry proceedings were in breach of the principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not at all supplied to the delinquent officer. The order passed by the Tribunal has been confirmed by the High Court by the impugned judgment and order. 7. Now, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, we are of the firm view that on the aforesaid ground, the order of punishment could not have been set aside by the Tribunal and the High court. The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned - delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. Therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality. 8. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:- 16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727] , Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293] , U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]) . 9. From the impugned judgment and order passed by the High Court, it appears that when the aforesaid submission and the aforesaid decision was pressed into service, the High Court has not considered the same on the ground that the other officers involved in respect of the same incident are exonerated and/or no action is taken against them. Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable.
### Response:
1
### Explanation:
7. Now, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, we are of the firm view that on the aforesaid ground, the order of punishment could not have been set aside by the Tribunal and the High court. The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned - delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. Therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.8. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:-16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727] , Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293] , U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]) .9. From the impugned judgment and order passed by the High Court, it appears that when the aforesaid submission and the aforesaid decision was pressed into service, the High Court has not considered the same on the ground that the other officers involved in respect of the same incident are exonerated and/or no action is taken against them. Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable.
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The Indian Overseas Bank Ltd Vs. The Commissioner Of Income-Tax, Madras | Hegde, J. 1. At the instance of the assessee, the Income Tax Appellante Tribunal (Madras Bench) referred to the High Court of Madras a statement of case under S. 66 (1) of the Indian Income Tax Act, 1922 (to be hereinafter referred to as the Act). The High Court answered one of the questions submitted along with the statement of case in favour of the assessee and the other in favour of the Revenue. The Revenue has not appealed against the decision of the High Court to the extent it went against it but the assessee has brought this appeal by certificate challenging the correctness of the view of the law taken by the High Curt on question No. 1 submitted for its opinion. 2. The question of law that we have to consider in this appeal is :"Whether the creation of a reserve in compliance with S. 17 of the Banking Companies Act is sufficient compliance with the requirements of S. 10 (2) (vi) (b) proviso (b) of the Indian Income-tax Act, 1922". 3. The authorities under the Act as well as the High Court have answered this question in the negative. 4. The appellant is a public Limited Company carrying on banking business. For the calendar year 1958 the previous year relating to the assessment year 1959-60, the appellant claimed allowance by way to development rebate under proviso (b) of s. 10 (2) (vi) (b) amounting to Rs. 1,37,836/- in the computation of its business income. 5. The admitted facts of the case are: that during the accounting year relating to the assessment year, the appellant Company had transferred a sum of Rs. 6 lakhs from the profit and loss account to the reserve fund. This sum is sufficient to meet the requirement of S. 17 of the Banking Companies Act, 1949 as well as of proviso (b) to S. 10 (2) (vi) (b) of the Act but no separate reserve fund as required by proviso (b) to S. 10 (2) (vi) (b) had been created. The contention of the appellant is that as the transfer to the reserve is sufficient to meet the requirements of Section 17 of the Banking Companies Act, 1949 as well as of proviso (b) to section 10 (2) (vi) (b) of the Act, in substance, if not in form, it has complied with the requirements of law and therefore it is entitled to the allowance of the rebate claimed. We are in agreement with the High Court that the appellant is not entitled to the allowance by way of development rebate claimed. The rebate under proviso (b) of S. 10 (vi) (b) is a concession granted but that concession is made subject to fulfilment of certain requirements. The grant of this allowance is made subject to the conditions prescribed in proviso (b) to Explanation (2) to S. 10(2) (vi) (b). The relevant portion of that proviso reads:" .......... an amount equal to seventy five per cent of the development rebate to the actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve account to be utilised by him during a period of ten years for the purposes of the business of the undertaking except .....". 6. The creation of the reserve contemplated by this provision is a condition precedent for obtaining the allowance of development rebate. Admittedly the appellant has not created any such separate reserve. Section 17 of the Banking Companies Act, 1949 prescribed:"Every banking company incorporated in India shall maintain a reserve fund, and shall, out of the net profits of each year and before any dividend is declared, transfer a sum equivalent to not less than twenty per cent of such profits to the reserve fund until the amount of the said fund is equal to the paid up capital. Explanation: For the purposes, of this section, the expression net profits shall have the meaning assigned to it in sub-section (3) of section 87C of the Indian Companies Act, 1913 (VII of 1913)." 7. The reserve contemplated by that provision is a separate reserve. The amount transferred to that reserve cannot be utilised for business purposes. The reserve contemplated by proviso (b) to section 10 (2) (vi) (b) of the Act is an independent reserve. The amount to be transferred to that reserve is debited before the profit and loss account is made up. That amount is required to be credited to a reserve account to be utilised by the assessee during a period of ten years for the purposes of the business of the undertaking. The nature of the two reserves are different. They are intended to serve two different purposes. As observed by the Madras High Court in Commer. Of Income tax v. Veeraswami Nainar, (1965) 55 ITR 35 = (AIR 1965 Mad 533) that the object of the legislature in allowing a development of the assessees business from out of the reserve fund is apparent from the terms of the proviso. The entries in the account books required by the proviso are not an idle formality. The assesee being obliged to credit the reserve fund for a specific purpose, he cannot draw upon the same for purposes other than those of the business and the amount cannot be distributed by way of dividend. It is also clear from the terms of the proviso that the transfer to the reserve fund should be made at the time of making up the profit and loss account. 8. The assesee not having complied with the requirements of S. 10 (2) (vi) (b) read with Explanations thereto, he is not entitled to claim the allowance in question. | 0[ds]We are in agreement with the High Court that the appellant is not entitled to the allowance by way of development rebate claimed. The rebate under proviso (b) of S. 10 (vi) (b) is a concession granted but that concession is made subject to fulfilment of certain requirements. The grant of this allowance is made subject to the conditions prescribed in proviso (b) to Explanation (2) to S. 10(2) (vi) (b). The relevant portion of that proviso reads:" .......... an amount equal to seventy five per cent of the development rebate to the actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve account to be utilised by him during a period of ten years for the purposes of the business of the undertaking except ....."6. The creation of the reserve contemplated by this provision is a condition precedent for obtaining the allowance of development rebate. Admittedly the appellant has not created any such separate reserve. Section 17 of the Banking Companies Act, 1949 prescribed:"Every banking company incorporated in India shall maintain a reserve fund, and shall, out of the net profits of each year and before any dividend is declared, transfer a sum equivalent to not less than twenty per cent of such profits to the reserve fund until the amount of the said fund is equal to the paid up capitalExplanation: For the purposes, of this section, the expression net profits shall have the meaning assigned to it in sub-section (3) of section 87C of the Indian Companies Act, 1913 (VII of 1913)."7. The reserve contemplated by that provision is a separate reserve. The amount transferred to that reserve cannot be utilised for business purposes. The reserve contemplated by proviso (b) to section 10 (2) (vi) (b) of the Act is an independent reserve. The amount to be transferred to that reserve is debited before the profit and loss account is made up. That amount is required to be credited to a reserve account to be utilised by the assessee during a period of ten years for the purposes of the business of the undertaking. The nature of the two reserves are different. They are intended to serve two different purposes. As observed by the Madras High Court in Commer. Of Income tax v. Veeraswami Nainar, (1965) 55 ITR 35 = (AIR 1965 Mad 533) that the object of the legislature in allowing a development of the assessees business from out of the reserve fund is apparent from the terms of the proviso. The entries in the account books required by the proviso are not an idle formality. The assesee being obliged to credit the reserve fund for a specific purpose, he cannot draw upon the same for purposes other than those of the business and the amount cannot be distributed by way of dividend. It is also clear from the terms of the proviso that the transfer to the reserve fund should be made at the time of making up the profit and loss account8. The assesee not having complied with the requirements of S. 10 (2) (vi) (b) read with Explanations thereto, he is not entitled to claim the allowance in question. | 0 | 1,111 | 623 | ### 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:
Hegde, J. 1. At the instance of the assessee, the Income Tax Appellante Tribunal (Madras Bench) referred to the High Court of Madras a statement of case under S. 66 (1) of the Indian Income Tax Act, 1922 (to be hereinafter referred to as the Act). The High Court answered one of the questions submitted along with the statement of case in favour of the assessee and the other in favour of the Revenue. The Revenue has not appealed against the decision of the High Court to the extent it went against it but the assessee has brought this appeal by certificate challenging the correctness of the view of the law taken by the High Curt on question No. 1 submitted for its opinion. 2. The question of law that we have to consider in this appeal is :"Whether the creation of a reserve in compliance with S. 17 of the Banking Companies Act is sufficient compliance with the requirements of S. 10 (2) (vi) (b) proviso (b) of the Indian Income-tax Act, 1922". 3. The authorities under the Act as well as the High Court have answered this question in the negative. 4. The appellant is a public Limited Company carrying on banking business. For the calendar year 1958 the previous year relating to the assessment year 1959-60, the appellant claimed allowance by way to development rebate under proviso (b) of s. 10 (2) (vi) (b) amounting to Rs. 1,37,836/- in the computation of its business income. 5. The admitted facts of the case are: that during the accounting year relating to the assessment year, the appellant Company had transferred a sum of Rs. 6 lakhs from the profit and loss account to the reserve fund. This sum is sufficient to meet the requirement of S. 17 of the Banking Companies Act, 1949 as well as of proviso (b) to S. 10 (2) (vi) (b) of the Act but no separate reserve fund as required by proviso (b) to S. 10 (2) (vi) (b) had been created. The contention of the appellant is that as the transfer to the reserve is sufficient to meet the requirements of Section 17 of the Banking Companies Act, 1949 as well as of proviso (b) to section 10 (2) (vi) (b) of the Act, in substance, if not in form, it has complied with the requirements of law and therefore it is entitled to the allowance of the rebate claimed. We are in agreement with the High Court that the appellant is not entitled to the allowance by way of development rebate claimed. The rebate under proviso (b) of S. 10 (vi) (b) is a concession granted but that concession is made subject to fulfilment of certain requirements. The grant of this allowance is made subject to the conditions prescribed in proviso (b) to Explanation (2) to S. 10(2) (vi) (b). The relevant portion of that proviso reads:" .......... an amount equal to seventy five per cent of the development rebate to the actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve account to be utilised by him during a period of ten years for the purposes of the business of the undertaking except .....". 6. The creation of the reserve contemplated by this provision is a condition precedent for obtaining the allowance of development rebate. Admittedly the appellant has not created any such separate reserve. Section 17 of the Banking Companies Act, 1949 prescribed:"Every banking company incorporated in India shall maintain a reserve fund, and shall, out of the net profits of each year and before any dividend is declared, transfer a sum equivalent to not less than twenty per cent of such profits to the reserve fund until the amount of the said fund is equal to the paid up capital. Explanation: For the purposes, of this section, the expression net profits shall have the meaning assigned to it in sub-section (3) of section 87C of the Indian Companies Act, 1913 (VII of 1913)." 7. The reserve contemplated by that provision is a separate reserve. The amount transferred to that reserve cannot be utilised for business purposes. The reserve contemplated by proviso (b) to section 10 (2) (vi) (b) of the Act is an independent reserve. The amount to be transferred to that reserve is debited before the profit and loss account is made up. That amount is required to be credited to a reserve account to be utilised by the assessee during a period of ten years for the purposes of the business of the undertaking. The nature of the two reserves are different. They are intended to serve two different purposes. As observed by the Madras High Court in Commer. Of Income tax v. Veeraswami Nainar, (1965) 55 ITR 35 = (AIR 1965 Mad 533) that the object of the legislature in allowing a development of the assessees business from out of the reserve fund is apparent from the terms of the proviso. The entries in the account books required by the proviso are not an idle formality. The assesee being obliged to credit the reserve fund for a specific purpose, he cannot draw upon the same for purposes other than those of the business and the amount cannot be distributed by way of dividend. It is also clear from the terms of the proviso that the transfer to the reserve fund should be made at the time of making up the profit and loss account. 8. The assesee not having complied with the requirements of S. 10 (2) (vi) (b) read with Explanations thereto, he is not entitled to claim the allowance in question.
### Response:
0
### Explanation:
We are in agreement with the High Court that the appellant is not entitled to the allowance by way of development rebate claimed. The rebate under proviso (b) of S. 10 (vi) (b) is a concession granted but that concession is made subject to fulfilment of certain requirements. The grant of this allowance is made subject to the conditions prescribed in proviso (b) to Explanation (2) to S. 10(2) (vi) (b). The relevant portion of that proviso reads:" .......... an amount equal to seventy five per cent of the development rebate to the actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve account to be utilised by him during a period of ten years for the purposes of the business of the undertaking except ....."6. The creation of the reserve contemplated by this provision is a condition precedent for obtaining the allowance of development rebate. Admittedly the appellant has not created any such separate reserve. Section 17 of the Banking Companies Act, 1949 prescribed:"Every banking company incorporated in India shall maintain a reserve fund, and shall, out of the net profits of each year and before any dividend is declared, transfer a sum equivalent to not less than twenty per cent of such profits to the reserve fund until the amount of the said fund is equal to the paid up capitalExplanation: For the purposes, of this section, the expression net profits shall have the meaning assigned to it in sub-section (3) of section 87C of the Indian Companies Act, 1913 (VII of 1913)."7. The reserve contemplated by that provision is a separate reserve. The amount transferred to that reserve cannot be utilised for business purposes. The reserve contemplated by proviso (b) to section 10 (2) (vi) (b) of the Act is an independent reserve. The amount to be transferred to that reserve is debited before the profit and loss account is made up. That amount is required to be credited to a reserve account to be utilised by the assessee during a period of ten years for the purposes of the business of the undertaking. The nature of the two reserves are different. They are intended to serve two different purposes. As observed by the Madras High Court in Commer. Of Income tax v. Veeraswami Nainar, (1965) 55 ITR 35 = (AIR 1965 Mad 533) that the object of the legislature in allowing a development of the assessees business from out of the reserve fund is apparent from the terms of the proviso. The entries in the account books required by the proviso are not an idle formality. The assesee being obliged to credit the reserve fund for a specific purpose, he cannot draw upon the same for purposes other than those of the business and the amount cannot be distributed by way of dividend. It is also clear from the terms of the proviso that the transfer to the reserve fund should be made at the time of making up the profit and loss account8. The assesee not having complied with the requirements of S. 10 (2) (vi) (b) read with Explanations thereto, he is not entitled to claim the allowance in question.
|
Income Tax Officer, Lucknow Vs. Messrs S.B. Singhar Singh and Sons and Another | 1956 presumably with a view to ensure that at the time of its presentation, none of the members of the Tribunal who had originally decided the assessees appeals, was there to hear the application; that even in this inordinately delayed application, review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non-decision of Ground No. 1 were alleged to be still pending; that the writ petition was filed after an abnormal delay of ten years; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant periods. It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computation and accounts. It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed. It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribunal who consequently, did not think it necessary to deal with it.Mr. Sampath, appearing for the assessee-respondent has not been able to deny the existence of the circumstances pointed out by Mr. Ahuja. His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court. This being the case, it is argued, this Court should not re-o pen the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal. According to Mr. Sampath, over 5 years delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessees letter of May 24, 1954 to the Income-tax Officer, seeking relief on the basis of Ground No. 1. 10. We find a good deal of force in the submissions made by Mr. Ahuja. The sheet-anchor of the assessees case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. The question whether or not this Ground had been argued, was one of fact. The tell-tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all probability, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility. It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a com plete statement of accounts and computation of the increase and decrease in capital. All that he said in his Additional Grounds of appeal before the Assistant Appellate Commissioner and the Appellate Tribunal in G round No. 1, was that he was prepared to file such a statement. Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. The a ffida- vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the surrounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectification, was a .matter entirely for the authorities under those Taxation statutes. It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was, ) had stressed in Shivram Poddar v. Income-tax Officer ([1964] 51 I.T.R. 823, 829 (S.C.))."Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities." 11. In the instant case, the High Court had assumed jurisdiction on the assumption that a certain ground had been urged before the Income-tax Appellate Tribunal which had arbitrarily refused to consider the same and record a finding thereon. This assumption, in our opinion, stood thoroughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. This was therefore not a fit ease for the exercise of its special jurisdiction under Article 226 by the High Court. | 1[ds]We find a good deal of force in the submissions made by Mr. Ahuja. The sheet-anchor of the assessees case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. The question whether or not this Ground had been argued, was one of fact. The tell-tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all probability, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility. It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a com plete statement of accounts and computation of the increase and decrease in capital. All that he said in his Additional Grounds of appeal before the Assistant Appellate Commissioner and the Appellate Tribunal in G round No. 1, was that he was prepared to file such a statement. Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. The a ffida- vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the surrounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectification, was a .matter entirely for the authorities under those Taxation statutes. It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was, ) had stressed in Shivram Poddar v. Income-tax Officer ([1964] 51 I.T.R. 823, 829 (S.C.))"Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities."In the instant case, the High Court had assumed jurisdiction on the assumption that a certain ground had been urged before the Income-tax Appellate Tribunal which had arbitrarily refused to consider the same and record a finding thereon. This assumption, in our opinion, stood thoroughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. This was therefore not a fit ease for the exercise of its special jurisdiction under Article 226 by the High Court. | 1 | 3,234 | 684 | ### 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:
1956 presumably with a view to ensure that at the time of its presentation, none of the members of the Tribunal who had originally decided the assessees appeals, was there to hear the application; that even in this inordinately delayed application, review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non-decision of Ground No. 1 were alleged to be still pending; that the writ petition was filed after an abnormal delay of ten years; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant periods. It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computation and accounts. It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed. It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribunal who consequently, did not think it necessary to deal with it.Mr. Sampath, appearing for the assessee-respondent has not been able to deny the existence of the circumstances pointed out by Mr. Ahuja. His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court. This being the case, it is argued, this Court should not re-o pen the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal. According to Mr. Sampath, over 5 years delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessees letter of May 24, 1954 to the Income-tax Officer, seeking relief on the basis of Ground No. 1. 10. We find a good deal of force in the submissions made by Mr. Ahuja. The sheet-anchor of the assessees case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. The question whether or not this Ground had been argued, was one of fact. The tell-tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all probability, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility. It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a com plete statement of accounts and computation of the increase and decrease in capital. All that he said in his Additional Grounds of appeal before the Assistant Appellate Commissioner and the Appellate Tribunal in G round No. 1, was that he was prepared to file such a statement. Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. The a ffida- vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the surrounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectification, was a .matter entirely for the authorities under those Taxation statutes. It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was, ) had stressed in Shivram Poddar v. Income-tax Officer ([1964] 51 I.T.R. 823, 829 (S.C.))."Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities." 11. In the instant case, the High Court had assumed jurisdiction on the assumption that a certain ground had been urged before the Income-tax Appellate Tribunal which had arbitrarily refused to consider the same and record a finding thereon. This assumption, in our opinion, stood thoroughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. This was therefore not a fit ease for the exercise of its special jurisdiction under Article 226 by the High Court.
### Response:
1
### Explanation:
We find a good deal of force in the submissions made by Mr. Ahuja. The sheet-anchor of the assessees case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. The question whether or not this Ground had been argued, was one of fact. The tell-tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all probability, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility. It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a com plete statement of accounts and computation of the increase and decrease in capital. All that he said in his Additional Grounds of appeal before the Assistant Appellate Commissioner and the Appellate Tribunal in G round No. 1, was that he was prepared to file such a statement. Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. The a ffida- vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the surrounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectification, was a .matter entirely for the authorities under those Taxation statutes. It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was, ) had stressed in Shivram Poddar v. Income-tax Officer ([1964] 51 I.T.R. 823, 829 (S.C.))"Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities."In the instant case, the High Court had assumed jurisdiction on the assumption that a certain ground had been urged before the Income-tax Appellate Tribunal which had arbitrarily refused to consider the same and record a finding thereon. This assumption, in our opinion, stood thoroughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. This was therefore not a fit ease for the exercise of its special jurisdiction under Article 226 by the High Court.
|
INSTITUTE OF COMPANIES SECRETARIES OF INDIA Vs. PARAS JAIN | Rules, 2005. 2. The factual matrix of the case is that the respondent appeared in the final examination for Company Secretary conducted by the Appellant in December, 2012. On being unsuccessful in qualifying the examination, the respondent made an application under the Right to Information Act for inspection of his answer sheets and subsequently, sought certified copies of the same from the appellant. The appellant thereafter has demanded? 500/- per answer sheet payable for supply of certified copy(ies) of answer book(s) and? 450/- per answer book for providing inspection thereof respectively as per Guideline No.3 notified by the statutory council of the appellant. It is to be noted that the respondent obtained the said information under the Right to Information Act, 2005. 3. Being aggrieved by the demand made by the appellant, the respondent preferred a Writ Petition before the Delhi High Court wherein the Learned Single Judge dismissed the petition. A Letters Patent Appeal was thereafter preferred by the respondent wherein, the Division Bench quashed Guideline No.3 notified by the appellant and held that the appellant can charge only the prescribed fee under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005. 4. The short issue before us is when the answer scripts of appellants examination is sought whether the fee prescribed under Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005 payable or that under Guideline No. 3 of the Guideline, Rules and Procedures for Providing Inspection and/or Supply of Certified Copy(ies) of Answer Book(s) to Students, framed by the Examination Committee of appellants statutory Council at its 148th Meeting held on 14.08.2013. 5. The learned counsel appearing on behalf of the appellant argued that it is undisputed that the Right to Information Act, 2005 is applicable to the appellant. However, in light of specific guidelines formulated under the Company Secretaries Act, 1980, the same should be applicable and not that which is provided under the Right to Information Act. He further contends that owing to quashing of Guideline No. 3 by the Division Bench of Delhi High Court, the appellant cannot collect any amount of fee except the one prescribed under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which adds to financial strain on the appellant. 6. On the other hand, the learned counsel appearing on behalf of the respondent submitted that any candidate who seeks his answer scripts under Right to Information Act, 2005 can only be charged under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005. Further, the learned counsel submits that the candidates must have a choice to seek the answer scripts either by the avenue under Right to Information Act or under the Guidelines of the appellant framed by the examination committee of statutory Council under the Company Secretaries Act, 1980. 7. Having heard the learned counsels appearing for the parties and we have also meticulously perused the record. 8. The appellant is governed by the provisions of Company Secretaries Act, 1980 and under Sections 15, 15A and 17, the Examination Committee of the statutory Council has framed Guideline No. 3 providing an avenue to the candidates to either inspect their answer scripts or seek certified copies of the same on payment of the stipulated fees. Guideline no.3 stipulates payment of? 500 for obtaining certified copies and? 450 for seeking inspection of the same. 3. Fee of? 500 per subject/answer books payable for supply of certified copy(ies) of answer book(s) and? 450 per answer book for providing inspection thereof respectively. The fee shall be paid through Demand Draft drawn in favour of The Institute of Company Secretaries of India, payable at New Delhi. 9. On the contrary, Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 stipulates, 4. For providing the information under sub-section (1) of section 7, the fee shall be charged by way of cash against proper receipt or by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority at the following rates:- (a ) rupees two for each page (in A4 or A3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost or price for samples or models; and (d) for inspection of records, no fee for the first hour; and a fee of rupees five for each subsequent hour (or fraction thereof). (emphasis supplied) 10. Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant. 11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as reevaluation, retotaling of answer scripts. 12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines. 13. The appellant has submitted that the Division Bench of Delhi High Court erred in quashing Guideline no.3 which is affecting not only the appellant but also the candidates. | 1[ds]7. Having heard the learned counsels appearing for the parties and we have also meticulously perused the record.8. The appellant is governed by the provisions of Company Secretaries Act, 1980 and under Sections 15, 15A and 17, the Examination Committee of the statutory Council has framed Guideline No. 3 providing an avenue to the candidates to either inspect their answer scripts or seek certified copies of the same on payment of the stipulated fees.10. Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant.11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as reevaluation, retotaling of answer scripts.12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines. | 1 | 1,221 | 325 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Rules, 2005. 2. The factual matrix of the case is that the respondent appeared in the final examination for Company Secretary conducted by the Appellant in December, 2012. On being unsuccessful in qualifying the examination, the respondent made an application under the Right to Information Act for inspection of his answer sheets and subsequently, sought certified copies of the same from the appellant. The appellant thereafter has demanded? 500/- per answer sheet payable for supply of certified copy(ies) of answer book(s) and? 450/- per answer book for providing inspection thereof respectively as per Guideline No.3 notified by the statutory council of the appellant. It is to be noted that the respondent obtained the said information under the Right to Information Act, 2005. 3. Being aggrieved by the demand made by the appellant, the respondent preferred a Writ Petition before the Delhi High Court wherein the Learned Single Judge dismissed the petition. A Letters Patent Appeal was thereafter preferred by the respondent wherein, the Division Bench quashed Guideline No.3 notified by the appellant and held that the appellant can charge only the prescribed fee under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005. 4. The short issue before us is when the answer scripts of appellants examination is sought whether the fee prescribed under Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005 payable or that under Guideline No. 3 of the Guideline, Rules and Procedures for Providing Inspection and/or Supply of Certified Copy(ies) of Answer Book(s) to Students, framed by the Examination Committee of appellants statutory Council at its 148th Meeting held on 14.08.2013. 5. The learned counsel appearing on behalf of the appellant argued that it is undisputed that the Right to Information Act, 2005 is applicable to the appellant. However, in light of specific guidelines formulated under the Company Secretaries Act, 1980, the same should be applicable and not that which is provided under the Right to Information Act. He further contends that owing to quashing of Guideline No. 3 by the Division Bench of Delhi High Court, the appellant cannot collect any amount of fee except the one prescribed under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which adds to financial strain on the appellant. 6. On the other hand, the learned counsel appearing on behalf of the respondent submitted that any candidate who seeks his answer scripts under Right to Information Act, 2005 can only be charged under Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005. Further, the learned counsel submits that the candidates must have a choice to seek the answer scripts either by the avenue under Right to Information Act or under the Guidelines of the appellant framed by the examination committee of statutory Council under the Company Secretaries Act, 1980. 7. Having heard the learned counsels appearing for the parties and we have also meticulously perused the record. 8. The appellant is governed by the provisions of Company Secretaries Act, 1980 and under Sections 15, 15A and 17, the Examination Committee of the statutory Council has framed Guideline No. 3 providing an avenue to the candidates to either inspect their answer scripts or seek certified copies of the same on payment of the stipulated fees. Guideline no.3 stipulates payment of? 500 for obtaining certified copies and? 450 for seeking inspection of the same. 3. Fee of? 500 per subject/answer books payable for supply of certified copy(ies) of answer book(s) and? 450 per answer book for providing inspection thereof respectively. The fee shall be paid through Demand Draft drawn in favour of The Institute of Company Secretaries of India, payable at New Delhi. 9. On the contrary, Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 stipulates, 4. For providing the information under sub-section (1) of section 7, the fee shall be charged by way of cash against proper receipt or by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority at the following rates:- (a ) rupees two for each page (in A4 or A3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost or price for samples or models; and (d) for inspection of records, no fee for the first hour; and a fee of rupees five for each subsequent hour (or fraction thereof). (emphasis supplied) 10. Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant. 11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as reevaluation, retotaling of answer scripts. 12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines. 13. The appellant has submitted that the Division Bench of Delhi High Court erred in quashing Guideline no.3 which is affecting not only the appellant but also the candidates.
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7. Having heard the learned counsels appearing for the parties and we have also meticulously perused the record.8. The appellant is governed by the provisions of Company Secretaries Act, 1980 and under Sections 15, 15A and 17, the Examination Committee of the statutory Council has framed Guideline No. 3 providing an avenue to the candidates to either inspect their answer scripts or seek certified copies of the same on payment of the stipulated fees.10. Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant.11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as reevaluation, retotaling of answer scripts.12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines.
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Union of India & Another Vs. M/s. Kumho Petrochemicals Company Limited & Another | form and manner and furnish their views to the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable.11. Though the Notification is dated December 31, 2013 and published on the same date, it was sent for distribution to Kitab Mahal Book Store on January 06, 2014. The validity would depend upon the issue as to whether December 31, 2013 is the date of reckoning or it is only January 06, 2014.12. The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as a pre-condition for initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition of anti-dumping duty.13. Questioning the aforesaid approach of the High Court, it was argued by the learned counsel for the writ petitioners that this view was contrary to the judgment of this Court in B.K. Srinivasan & Ors. v. State of Karnataka & Ors., (1987) 1 SCC 658 wherein it was held as under:"15....Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication..."14. It was argued that the aforesaid principle was reiterated in the case of Union of India & Ors. v. Ganesh Das Bhojraj, (2000) 9 SCC 461. On the basis of this principle contained in the aforesaid judgments, it was submitted that even if the provisions of the statute, i.e. Section 9A, were silent about the publication of the Notification, concerned Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 were to be followed. It was argued that Rule 6(1) of the said Rules required issuance of public notice of initiation of investigation and, thus, having regard to the dicta laid down in the aforesaid judgments prescribing a mode of publication, publication by `extraordinarily recognised Official Gazette, namely the Official Gazette, had to be resorted to and since it was made available to public only on January 06, 2014, that date has to be treated as the relevant date when the Notification came into force, having regard to the ratio of judgment in Union of India v. Param Industries Ltd., 2015 (321) ELT 192 (SC)15. Rule 6 of the aforesaid Rules deals with principles governing investigations. Sub-rule (11) thereof mentions that whenever Designated Authority has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, it shall issue a public notice underlying its decision and also mention the particulars/information which shall be provided in the said public notice. This Rule thereafter narrates the procedure which is to be followed which includes providing opportunity to the industrial user of the article under investigation and the respective consumer organisation in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping/injury where applicable, and casualty. The High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition of anti-dumping duty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty. Such a purport of Rule 6 of the rules is recognised in the case of Automotive Tyre Manufacturers Association v. Designated Authority & Ors., (2011) 2 SCC 258 , namely, the Designated Authority is to conform to the principles of natural justice, as can be seen from the following discussion in the said judgment:"82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules."16. First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition of anti-dumping duty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made public. | 0[ds]QUESTION NO.19. It is not in dispute that in terms of Section 9A(5) of the Act,duty is effective for a period not exceeding five years from the date of its imposition. The Government is empowered to revoke the duty imposed even before the expiry of five years. In any case, such a duty admittedly ceases to be operative after five years from the date of imposition.It is a common case that such a sunset review is to initiate before the expiry of five years period mentioned in the Notification. In the present case, no doubt, the Notification which is passed initiating sunset review is dated December 31, 2013. Though we have reproduced relevant portion of this Notification, a perusal of the entire Notification reveals that it is a detailed Notification running into almost fifteen pages wherein history of original investigation concerned the imports of the product in question from Korea RP and Germany is traced out leading to the findings that were arrived at by the Authority on the basis of whichduty was imposed on the subject goods vide Notification dated July 30, 1997. This Notification thereafter deals with the second sunset review which led to passing of further Notification dated January 02, 2009. Thereafter, it mentions that M/s. Omnova Solution (Pvt.) Limited had filed a duly substantiated application on November 11, 2013 before the Authority alleging likelihood of continuation of recurrence of dumping of the subject goods, originating in or exported from Korea RP, and a consequent injury to the domestic market and requested for another review. The Notification thereafter deals with the situation of domestic industry, product in question and satisfaction of the Authority that a case was made out for initiation of sunset review investigation to review the need for continued imposition ofduty in force in respect of the product in question. The Notification thereof calls upon the interested parties to submit relevant information in the prescribed form and manner and furnish their views to the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable.The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as afor initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition ofe High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition ofduty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty.First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend theduty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which theduty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition ofduty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made. From the scheme of Section 9A of the Act, it becomes clear that though the Notification forduty is valid for a maximum period of five years, the said period can be extended further with the issuance of fresh notification. For this purpose, it is necessary to initiate the review exercise before the expiry of the original notification, which review is commonly known as `sunset review. There may be situations where the sunset review is undertaken but the review exercise is not complete before the expiry of the period of original notification. It is because of the reason that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing theduty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them adequate opportunity in this behalf and thereafter arriving at a conclusion that the continuation of theduty is justified, otherwise injury to the domestic industry is likely to continue or reoccur, if the saidduty is removed or varied. Since this exercise is likely to take some time and may go beyond the period stipulated in the original notification imposingduty, in order to ensure that there is no vacuum in the interregnum, second proviso to(5) of Section 9A of the Act empowers the Central Government to continue theduty for a further period not exceeding one year, pending the outcome of such a review. The question, however, is as to whetherthis extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of theduty or the continuation of such anduty has to be by a propernotification. As noted above, the High Court has held that second proviso is only an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, without which theduty cannot continue to remain in force with the lapse of original notification.31. After giving due consideration to the arguments advanced by the learned counsel for the parties, we are inclined to agree with the High Court that proviso to(5) of Section 9A of the Act is an enabling provision. That is very clear from the language of the said provision itself.(5) of Section 9A gives maximum life of five years to the imposition ofduty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. However, the words `unless revoked earlier in(5) clearly indicate that the period of five years can be curtailed by revoking the imposition ofduty earlier. Of course, provision for review is there, as mentioned above, and the Central Government may extend the period if after undertaking the review it forms an opinion that continuation of such anduty is necessary in public interest. When such a notification is issued after review, period of imposition gets extended by another five years. That is the effect of first proviso to(5) of Section 9A. However, what we intend to emphasise here is that even as per(5) it is not necessary that in all casesduty shall be imposed for a full period of five years as it can be revoked earlier. Likewise, when a review is initiated but final conclusion is not arrived at and the period of five years stipulated in the original notification expires in the meantime, as per second proviso `theduty may continue to remain in force. However, it cannot be said that the duty would automatically get continued after the expiry of five years simply because review exercise is initiated before the expiry of the aforesaid period. It cannot be denied, which was not even disputed before us, that issuance of a notification is necessary for extending the period ofduty. Reason is simple. There no duty or tax can be imposed without the authority of `law. Here, such a law has to be in the form of an appropriate notification and in the absence thereof the duty, which is in the form of a tax, cannot be extracted as, otherwise, it would violate the provisions of Article 265 of the Constitution of India. As a fortiorari, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression `may in the second proviso to(5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision.32. We are conscious of the fact that once sunset review is initiated, such initiation takes place only after a substantiated application/request is filed by the indigenous industry which is examined and a prima facie view is formed by the Central Government to the effect that such a review is necessitated as withdrawal ofduty or cessation thereof may be prejudicial to the indigenous industry. Once such an opinion is formed and the sunset review is initiated, in all likelihood the Central Government would make use of second proviso and issue notification for continuing the saidduty. At the same time, it cannot be said that without any overt act on the part of the Central Government, there is an automatic continuation. The learned counsel for respondent rightfully pointed out that the legislature has consciously used the expression `may and `shall at different places in the same Section, i.e., Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when the word `may is used in the same Section in contradistinction to the word `shall at other places in that very Section, it is difficult to interpret the word `may as `shall. Therefore, it is difficult to read the word `may as `shall. Our conclusion gets strengthened when we keep in mind following additional factors:33. Theduty may continue, pending the outcome of the review, for a further period not exceeding one year. Thus, maximum period of one year is prescribed for this purpose which implies that the period can be lesser as well. The Government is, thus, to necessarily form an opinion as to for how much period it wants to continue theduty pending outcome of such a review. Moreover, since the maximum period is one year, if the review exercise is not completed within one year, the effect of that would be that after the lapse of one year there would not be anyduty even if the review is pending. In that eventuality, it is only after the review exercise is complete and the Central Government forms the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of dumping and injury, it would issue a notification extending the period of imposition of duty. Therefore, there may be a situation where even when the power is exercised under second proviso and duty period extended by full one year, the review exercise could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between.34. Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orIn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of theAct. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of the. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.As noticed above, the High Court has held that once the earlier Notification by whichduty was extended by five years, i.e. up to January 01, 2014, expired, the Central Government was not empowered to issue any Notification after the said date, namely, on January 23, 2014, inasmuch as there was no Notification in existence the period whereof could be extended. The High Court, in the process, has also held that the Notification extendingduty by five years, i.e. up to January 01, 2014 was in the nature of temporary legislation and validity thereof could be extended, in exercise of powers contained in second proviso to(5) of Section 9A of the Act only before January 01, 2014.37. We do not find any infirmity in the aforesaid approach of the High Court in interpreting the second proviso to Section 9A(5) of the Act. The High Court has rightly interpreted the aforesaid provision in the light of Article 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as `Implementation Agreement.on (5) of Section 9A is in tune with the aforesaid Articles of Implementation Agreement and is to be interpreted in that hue.39. India is a signatory to the Marrakesh Agreement establishing the World Trade Organization in 1994. Pursuant to this, it has implemented the Agreement on Implementation of Article VI of the GATT 1994 referred to as theAgreement (ADA), which is one of the Agreements that forms part of the WTO treaty. In terms of Article 18.4 of the ADA, each Member country is required to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the ADA. As a consequence, Sections 9A, Section 9AA, Section 9B and Section 9C of the Act were enacted.40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposingduty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending aNotification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed. | 0 | 5,859 | 3,255 | ### Instruction:
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form and manner and furnish their views to the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable.11. Though the Notification is dated December 31, 2013 and published on the same date, it was sent for distribution to Kitab Mahal Book Store on January 06, 2014. The validity would depend upon the issue as to whether December 31, 2013 is the date of reckoning or it is only January 06, 2014.12. The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as a pre-condition for initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition of anti-dumping duty.13. Questioning the aforesaid approach of the High Court, it was argued by the learned counsel for the writ petitioners that this view was contrary to the judgment of this Court in B.K. Srinivasan & Ors. v. State of Karnataka & Ors., (1987) 1 SCC 658 wherein it was held as under:"15....Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication..."14. It was argued that the aforesaid principle was reiterated in the case of Union of India & Ors. v. Ganesh Das Bhojraj, (2000) 9 SCC 461. On the basis of this principle contained in the aforesaid judgments, it was submitted that even if the provisions of the statute, i.e. Section 9A, were silent about the publication of the Notification, concerned Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 were to be followed. It was argued that Rule 6(1) of the said Rules required issuance of public notice of initiation of investigation and, thus, having regard to the dicta laid down in the aforesaid judgments prescribing a mode of publication, publication by `extraordinarily recognised Official Gazette, namely the Official Gazette, had to be resorted to and since it was made available to public only on January 06, 2014, that date has to be treated as the relevant date when the Notification came into force, having regard to the ratio of judgment in Union of India v. Param Industries Ltd., 2015 (321) ELT 192 (SC)15. Rule 6 of the aforesaid Rules deals with principles governing investigations. Sub-rule (11) thereof mentions that whenever Designated Authority has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, it shall issue a public notice underlying its decision and also mention the particulars/information which shall be provided in the said public notice. This Rule thereafter narrates the procedure which is to be followed which includes providing opportunity to the industrial user of the article under investigation and the respective consumer organisation in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping/injury where applicable, and casualty. The High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition of anti-dumping duty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty. Such a purport of Rule 6 of the rules is recognised in the case of Automotive Tyre Manufacturers Association v. Designated Authority & Ors., (2011) 2 SCC 258 , namely, the Designated Authority is to conform to the principles of natural justice, as can be seen from the following discussion in the said judgment:"82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules."16. First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition of anti-dumping duty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made public.
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could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between.34. Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orIn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of theAct. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of the. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.As noticed above, the High Court has held that once the earlier Notification by whichduty was extended by five years, i.e. up to January 01, 2014, expired, the Central Government was not empowered to issue any Notification after the said date, namely, on January 23, 2014, inasmuch as there was no Notification in existence the period whereof could be extended. The High Court, in the process, has also held that the Notification extendingduty by five years, i.e. up to January 01, 2014 was in the nature of temporary legislation and validity thereof could be extended, in exercise of powers contained in second proviso to(5) of Section 9A of the Act only before January 01, 2014.37. We do not find any infirmity in the aforesaid approach of the High Court in interpreting the second proviso to Section 9A(5) of the Act. The High Court has rightly interpreted the aforesaid provision in the light of Article 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as `Implementation Agreement.on (5) of Section 9A is in tune with the aforesaid Articles of Implementation Agreement and is to be interpreted in that hue.39. India is a signatory to the Marrakesh Agreement establishing the World Trade Organization in 1994. Pursuant to this, it has implemented the Agreement on Implementation of Article VI of the GATT 1994 referred to as theAgreement (ADA), which is one of the Agreements that forms part of the WTO treaty. In terms of Article 18.4 of the ADA, each Member country is required to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the ADA. As a consequence, Sections 9A, Section 9AA, Section 9B and Section 9C of the Act were enacted.40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposingduty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending aNotification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed.
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UNION OF INDIA & ORS Vs. ILMO DEVI & ANR | policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case of R.S. Bhonde and Ors. (supra), it is observed and held by this Court that the status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done. 8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:- 12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 .] 8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. 8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014. 8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group D posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group D posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents employees are concerned. | 1[ds]8. At the outset, it is required to be noted that the respondents- original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. It is not in dispute and cannot be disputed that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working. There is no documentary evidence on record to establish and prove that the respondents were working continuously. Even otherwise as observed hereinabove, they were working as contingent paid part-time sweepers. Even it is not the case on behalf of the respondents that their appointment was done after following due procedure of selection and to that extent, it cannot be said that their appointments were irregular. As such in the absence of any sanctioned posts in the Post Office in which the respondents were working, there was no question of appointing the respondents after following due procedure. In light of the above, the directions issued by the High Court in the impugned judgment and order are required to be considered.8.4 The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part-time employees and were contingent paid staff. As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 .]8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group D posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group D posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents employees are concerned. | 1 | 5,712 | 1,443 | ### 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:
policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case of R.S. Bhonde and Ors. (supra), it is observed and held by this Court that the status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done. 8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:- 12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 .] 8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. 8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014. 8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group D posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group D posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents employees are concerned.
### Response:
1
### Explanation:
cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 .]8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group D posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group D posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents employees are concerned.
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The Workmen of The Bangalore Woollen, Cotton & Silk Mills Co, Ltd Vs. The Management of the Bangalore, Woollen, Cotton & Silk Mills Co, Ltd | of health. As we understood Mr. Jha, he fairly conceded that he could not press the case of any workman excepting these ten.7. Now the question with regard to these ten workmen is whether they can be said to have retrenched within the meaning of the definition. It seems to us that they cannot. The award has first to be read along with the dispute referred in connection with which it had been made. That dispute concerned payment of bonus to workmen as "discharged as being no longer required." It therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their service had been needed. The award settled this dispute. Therefore it seems to us that the Company agreed by it to pay gratuity only to workmen who had been discharged on the ground that their services were no longer required and not to any whose services had been terminated for any other reason. Now when a workman is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal, is cannot be said that they had been discharged on the ground that their services were no longer required; on the contrary they were not in a fit condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were not required.8. But Mr. Jha says that we have to construe the award by itself. According to him, under the award the Company is bound to pay gratuity according to the terms of the Ordinance, and, therefore, to all whose services were terminated by way of retrenchment within the definition of that word inserted in the principal Act by the Ordinance. We do not think that this contention either of Mr. Jha is tenable. The definition makes retrenchment a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word "retrenchment is also supported by S. 25-G of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employ any person he shall give an opportunity to the retrenched workmen to offer themselves for reemployment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If could not do the work, he could not be offered employment again. It would fallow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.9. We therefore think that the ten persons who had been discharged on grounds of health-and as to this there does not appear to be any dispute-were not persons who were entitled to any payment under Ordinance No. 5 of 1953.10. Mr. Jha made a point that the Company paid thirty-seven workmen whom it had dismissed on grounds of health and it was discriminatory on its part not to pay those ten discharged on similar grounds. We are here not concerned with discrimination but with the construction of the award. Furthermore, as it was stated on behalf of the Company, it was not in a position for whatever reason it may have been, to prove that the thirty-seven men were medically unfit. So the discharge of these men was termination of their services by the Company. In this view the Company could not dispute that they were entitled to payment under the award. In the case of the ten persons with whom we are concerned, the Company can prove that they were physically unfit to do the work. That they were so is, as we have earlier said, not in dispute. Hence the two sets of workmen were entirely differently situated. No question of discrimination therefore arises.11. In our view therefore the claim of the workmen in this case is not well founded. A question appears to have been raised before the Tribunal as to whether in view of the fact that the Ordinance was repealed by an Act, it was the Ordinance under which gratuity would be payable under the award, or the Act. It appears to have been the contention on behalf of the Company that the Act governed the case, the workmen contending that the Ordinance did so. We think it unnecessary to decide the question for it has not been contended on behalf of the workmen that their position would be any better under the Ordinance than under the Act, and because in our view under the Ordinance on which only the workmen based themselves their claim cannot be supported. | 0[ds]To clear the ground it may be stated that even if Mr. Jha is right, then thirteen of thepersons would not be entitled, to any gratuity under the award. As we have stated earlier, one of them was discharged for misconduct, that is, that was a case of termination of service by way of disciplinary action and therefore not retrenchment within the definition. Another of thesepersons had been discharged before January 1, l953 and the award only applied to workmen whose services had been terminated as from that date. This workman also was therefore not entitled to the benefit of the award. Seven had died and four had resigned. These eleven therefore had not been retrenched for their services could not be said to have been terminated. That leaves only ten workmen who had been discharged on grounds of health. As we understood Mr. Jha, he fairly conceded that he could not press the case of any workman excepting theseaward has first to be read along with the dispute referred in connection with which it had been made. That dispute concerned payment of bonus to workmen as "discharged as being no longer required." It therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their service had been needed. The award settled this dispute. Therefore it seems to us that the Company agreed by it to pay gratuity only to workmen who had been discharged on the ground that their services were no longer required and not to any whose services had been terminated for any other reason. Now when a workman is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal, is cannot be said that they had been discharged on the ground that their services were no longer required; on the contrary they were not in a fit condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were notdo not think that this contention either of Mr. Jha is tenable. The definition makes retrenchment a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground ofit is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word "retrenchment is also supported by S.of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employ any person he shall give an opportunity to the retrenched workmen to offer themselves for reemployment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness orwould be offeredit was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If could not do the work, he could not be offered employment again. It would fallow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.9. We therefore think that the ten persons who had been discharged on grounds ofas to this there does not appear to be anynot persons who were entitled to any payment under Ordinance No. 5 ofare here not concerned with discrimination but with the construction of the award. Furthermore, as it was stated on behalf of the Company, it was not in a position for whatever reason it may have been, to prove that themen were medically unfit. So the discharge of these men was termination of their services by the Company. In this view the Company could not dispute that they were entitled to payment under the award. In the case of the ten persons with whom we are concerned, the Company can prove that they were physically unfit to do the work. That they were so is, as we have earlier said, not in dispute. Hence the two sets of workmen were entirely differently situated. No question of discrimination therefore arises.11. In our view therefore the claim of the workmen in this case is not well founded. A question appears to have been raised before the Tribunal as to whether in view of the fact that the Ordinance was repealed by an Act, it was the Ordinance under which gratuity would be payable under the award, or the Act. It appears to have been the contention on behalf of the Company that the Act governed the case, the workmen contending that the Ordinance did so. We think it unnecessary to decide the question for it has not been contended on behalf of the workmen that their position would be any better under the Ordinance than under the Act, and because in our view under the Ordinance on which only the workmen based themselves their claim cannot be supported. | 0 | 2,197 | 1,068 | ### 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 health. As we understood Mr. Jha, he fairly conceded that he could not press the case of any workman excepting these ten.7. Now the question with regard to these ten workmen is whether they can be said to have retrenched within the meaning of the definition. It seems to us that they cannot. The award has first to be read along with the dispute referred in connection with which it had been made. That dispute concerned payment of bonus to workmen as "discharged as being no longer required." It therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their service had been needed. The award settled this dispute. Therefore it seems to us that the Company agreed by it to pay gratuity only to workmen who had been discharged on the ground that their services were no longer required and not to any whose services had been terminated for any other reason. Now when a workman is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal, is cannot be said that they had been discharged on the ground that their services were no longer required; on the contrary they were not in a fit condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were not required.8. But Mr. Jha says that we have to construe the award by itself. According to him, under the award the Company is bound to pay gratuity according to the terms of the Ordinance, and, therefore, to all whose services were terminated by way of retrenchment within the definition of that word inserted in the principal Act by the Ordinance. We do not think that this contention either of Mr. Jha is tenable. The definition makes retrenchment a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word "retrenchment is also supported by S. 25-G of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employ any person he shall give an opportunity to the retrenched workmen to offer themselves for reemployment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If could not do the work, he could not be offered employment again. It would fallow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.9. We therefore think that the ten persons who had been discharged on grounds of health-and as to this there does not appear to be any dispute-were not persons who were entitled to any payment under Ordinance No. 5 of 1953.10. Mr. Jha made a point that the Company paid thirty-seven workmen whom it had dismissed on grounds of health and it was discriminatory on its part not to pay those ten discharged on similar grounds. We are here not concerned with discrimination but with the construction of the award. Furthermore, as it was stated on behalf of the Company, it was not in a position for whatever reason it may have been, to prove that the thirty-seven men were medically unfit. So the discharge of these men was termination of their services by the Company. In this view the Company could not dispute that they were entitled to payment under the award. In the case of the ten persons with whom we are concerned, the Company can prove that they were physically unfit to do the work. That they were so is, as we have earlier said, not in dispute. Hence the two sets of workmen were entirely differently situated. No question of discrimination therefore arises.11. In our view therefore the claim of the workmen in this case is not well founded. A question appears to have been raised before the Tribunal as to whether in view of the fact that the Ordinance was repealed by an Act, it was the Ordinance under which gratuity would be payable under the award, or the Act. It appears to have been the contention on behalf of the Company that the Act governed the case, the workmen contending that the Ordinance did so. We think it unnecessary to decide the question for it has not been contended on behalf of the workmen that their position would be any better under the Ordinance than under the Act, and because in our view under the Ordinance on which only the workmen based themselves their claim cannot be supported.
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To clear the ground it may be stated that even if Mr. Jha is right, then thirteen of thepersons would not be entitled, to any gratuity under the award. As we have stated earlier, one of them was discharged for misconduct, that is, that was a case of termination of service by way of disciplinary action and therefore not retrenchment within the definition. Another of thesepersons had been discharged before January 1, l953 and the award only applied to workmen whose services had been terminated as from that date. This workman also was therefore not entitled to the benefit of the award. Seven had died and four had resigned. These eleven therefore had not been retrenched for their services could not be said to have been terminated. That leaves only ten workmen who had been discharged on grounds of health. As we understood Mr. Jha, he fairly conceded that he could not press the case of any workman excepting theseaward has first to be read along with the dispute referred in connection with which it had been made. That dispute concerned payment of bonus to workmen as "discharged as being no longer required." It therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their service had been needed. The award settled this dispute. Therefore it seems to us that the Company agreed by it to pay gratuity only to workmen who had been discharged on the ground that their services were no longer required and not to any whose services had been terminated for any other reason. Now when a workman is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal, is cannot be said that they had been discharged on the ground that their services were no longer required; on the contrary they were not in a fit condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were notdo not think that this contention either of Mr. Jha is tenable. The definition makes retrenchment a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground ofit is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word "retrenchment is also supported by S.of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employ any person he shall give an opportunity to the retrenched workmen to offer themselves for reemployment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness orwould be offeredit was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If could not do the work, he could not be offered employment again. It would fallow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.9. We therefore think that the ten persons who had been discharged on grounds ofas to this there does not appear to be anynot persons who were entitled to any payment under Ordinance No. 5 ofare here not concerned with discrimination but with the construction of the award. Furthermore, as it was stated on behalf of the Company, it was not in a position for whatever reason it may have been, to prove that themen were medically unfit. So the discharge of these men was termination of their services by the Company. In this view the Company could not dispute that they were entitled to payment under the award. In the case of the ten persons with whom we are concerned, the Company can prove that they were physically unfit to do the work. That they were so is, as we have earlier said, not in dispute. Hence the two sets of workmen were entirely differently situated. No question of discrimination therefore arises.11. In our view therefore the claim of the workmen in this case is not well founded. A question appears to have been raised before the Tribunal as to whether in view of the fact that the Ordinance was repealed by an Act, it was the Ordinance under which gratuity would be payable under the award, or the Act. It appears to have been the contention on behalf of the Company that the Act governed the case, the workmen contending that the Ordinance did so. We think it unnecessary to decide the question for it has not been contended on behalf of the workmen that their position would be any better under the Ordinance than under the Act, and because in our view under the Ordinance on which only the workmen based themselves their claim cannot be supported.
|
THE STATE OF UTTARAKHAND Vs. S.K.SINGH | the diploma holders altogether or allow them unrestricted promotion on par with the graduates.?25. The last judgment to be cited, to be considered by us, is of the two Judges in M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors. (2009) 5 SCC 625 In a case of an integrated list of seniority between direct recruits and promotees, preferential treatment, thereafter, based on educational qualifications was held as valid for considering promotion. However, among equally qualified candidates, there could be no further classification. The similarity of factual matrix is reflected, as the Junior Assistants holding the post were both graduates and post-graduates, though the minimum educational qualification was SSLC. From the post of Junior Assistants, the promotion was to the post of Assistants, and there could also be direct recruitment through competitive examinations. The minimum qualification for direct recruitment of Assistants was graduation. The promotion of Assistants to the post of Deputy Tahsildar was in question. The directly recruited Assistants were given preferential treatment by making them eligible for promotion as Deputy Tahsildar on completion of five (5) years as Assistants, while placing them above the senior, graduate promotee Assistants. In that context, it was observed that once the directly recruited Assistants have been integrated into one cadre, there could not be a further classification between those who had acquired the graduation qualification, whether before joining as Junior Assistants or thereafter. It was also left to the State to decide whether their qualification has a reasonable relation to the nature of duties and responsibilities of the promotional post. Similarly, regarding the question whether the difference in educational qualification is sufficient to give preferential treatment to one class of candidates against another, it was opined to be ordinarily left to the executive authorities to decide, as they have expertise in administrative matters and, ordinarily, it would not be proper for the court to sit in appeal over their decisions, unless it is something totally arbitrary or shocking.Conclusion:26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to do so. M. Rathinaswami & Ors. v. State of T amil Nadu & Ors. (supra) .27. It has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced. | 0[ds]16. On the appreciation of the aforesaid pleas, we do find that there are inconsistencies in the different principles set forth. On a query posed to the learned senior counsel for the private respondents, it was conceded on the basis of various judicial pronouncements, that the appellant would be well within its right to provide a higher qualification for a promotion post. Thus, it could be very well said that both, for promotion and for direct appointment to AEs, Degree could be the essential qualification. He further could not dispute the proposition that there are judicial pronouncements to support, providing for a differential in the period of service for two different sets of educational qualifications at the time of promotion. Thus, in a sense, the appellant would be within its right to provide for different periods of experience as JEs for Degree-holders and Diploma-holders, for the purposes of promotion. This is apart from the plea of the appellants that the accelerated promotion is to encourage the JEs to acquire higher qualifications, and once they acquire the higher qualification, whether they possess that qualification at the stage of entry or not would be immaterial (again a principle settled through judicial pronouncements).The private respondents also referred to the judgment of the two Judge Bench of this Court in Punjab State Electricity Board, Patiala & Anr. v. Ravinder Kumar Sharma & Ors. AIR 1987 SC 367 , which had struck down theRule in respect of quota being carved out between the Degree-holders and the Diploma-holders of line men. However, this would not be of much relevance, as this judgment was subsequently overruled in P. Murugesan & Ors. v. State of Tamil Nadu & Ors. (1993) 2 SCCreturning to the P. Murugesan (1993) 2 SCC 340 case, the amended Rules introduced a ratio of 3:1 between graduate AEs and Diploma-holders JEs for promotion to the post of Assistant Executive Engineers. These Rules were held not to be violative of Articles 14 and 16 of the Constitution, opining that the Rule making authority was competent to impose a complete bar, as well as partial restrictions on the category of promotees, on the basis of educational qualifications.23. It may also be noticed that the Rule making power, under the proviso to Article 309 of the Constitution has been emphasised as legislative in nature and thus, the test to determine the constitutionality of any provision of such Rule is whether the legislature was competent to enact such a provision.26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to doIt has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced. | 0 | 6,649 | 1,196 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the diploma holders altogether or allow them unrestricted promotion on par with the graduates.?25. The last judgment to be cited, to be considered by us, is of the two Judges in M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors. (2009) 5 SCC 625 In a case of an integrated list of seniority between direct recruits and promotees, preferential treatment, thereafter, based on educational qualifications was held as valid for considering promotion. However, among equally qualified candidates, there could be no further classification. The similarity of factual matrix is reflected, as the Junior Assistants holding the post were both graduates and post-graduates, though the minimum educational qualification was SSLC. From the post of Junior Assistants, the promotion was to the post of Assistants, and there could also be direct recruitment through competitive examinations. The minimum qualification for direct recruitment of Assistants was graduation. The promotion of Assistants to the post of Deputy Tahsildar was in question. The directly recruited Assistants were given preferential treatment by making them eligible for promotion as Deputy Tahsildar on completion of five (5) years as Assistants, while placing them above the senior, graduate promotee Assistants. In that context, it was observed that once the directly recruited Assistants have been integrated into one cadre, there could not be a further classification between those who had acquired the graduation qualification, whether before joining as Junior Assistants or thereafter. It was also left to the State to decide whether their qualification has a reasonable relation to the nature of duties and responsibilities of the promotional post. Similarly, regarding the question whether the difference in educational qualification is sufficient to give preferential treatment to one class of candidates against another, it was opined to be ordinarily left to the executive authorities to decide, as they have expertise in administrative matters and, ordinarily, it would not be proper for the court to sit in appeal over their decisions, unless it is something totally arbitrary or shocking.Conclusion:26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to do so. M. Rathinaswami & Ors. v. State of T amil Nadu & Ors. (supra) .27. It has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced.
### Response:
0
### Explanation:
both, for promotion and for direct appointment to AEs, Degree could be the essential qualification. He further could not dispute the proposition that there are judicial pronouncements to support, providing for a differential in the period of service for two different sets of educational qualifications at the time of promotion. Thus, in a sense, the appellant would be within its right to provide for different periods of experience as JEs for Degree-holders and Diploma-holders, for the purposes of promotion. This is apart from the plea of the appellants that the accelerated promotion is to encourage the JEs to acquire higher qualifications, and once they acquire the higher qualification, whether they possess that qualification at the stage of entry or not would be immaterial (again a principle settled through judicial pronouncements).The private respondents also referred to the judgment of the two Judge Bench of this Court in Punjab State Electricity Board, Patiala & Anr. v. Ravinder Kumar Sharma & Ors. AIR 1987 SC 367 , which had struck down theRule in respect of quota being carved out between the Degree-holders and the Diploma-holders of line men. However, this would not be of much relevance, as this judgment was subsequently overruled in P. Murugesan & Ors. v. State of Tamil Nadu & Ors. (1993) 2 SCCreturning to the P. Murugesan (1993) 2 SCC 340 case, the amended Rules introduced a ratio of 3:1 between graduate AEs and Diploma-holders JEs for promotion to the post of Assistant Executive Engineers. These Rules were held not to be violative of Articles 14 and 16 of the Constitution, opining that the Rule making authority was competent to impose a complete bar, as well as partial restrictions on the category of promotees, on the basis of educational qualifications.23. It may also be noticed that the Rule making power, under the proviso to Article 309 of the Constitution has been emphasised as legislative in nature and thus, the test to determine the constitutionality of any provision of such Rule is whether the legislature was competent to enact such a provision.26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to doIt has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced.
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M/s. Kapoor Nilokheri Co-Operative Dairy Farm Society Limited Vs. Union of India & Others | to a close soon.9. We do not, therefore, feel that we would be justified in reversing the concurrent findings of both the Courts below that the order regarding privilege was made and pronounced on the date on which it was made. There is no particular reason why the Arbitrator should have resorted to this fraudulent act. The award would not have been weakened in any way if the documents in respect of which privilege had been claimed had been placed on record. Nor is it in any way strengthened by the order on the question of privilege.10. We may also refer to the fact that soon after the agreement on 28-5-53 the appellants Manager had written to the Chief Accountant of the Rehabilitation Colony that the cost of the animals was mentioned as provisional because the books were not complete and he requested that exact book value of the animals as on 1-10-1950 may be intimated to him. Another document, Ext. A-36 also shows that the appellants knew what the book value was. Incidentally the same figures appear in the calculations filed by the appellants on the question of depreciation in respect of the Tharparkar Cows. To the same effect is the letter Ext. R-5 dated 14-12-53. The figures given by the appellants Society in Ext. R-7 dated 2710-52 are the same as found in the appellants counter claim before the Arbitrator.11. In the circumstances the appellants should also be deemed to have waived any objections that they may have had on the question of privilege. In "Russell on Arbitration" (Seventeenth Edition) at page 182 statement of law is given as follows :"Objections to a decision of the arbitrator as to whether or not to admit evidence, may be waived, like other objections to the manner in which the proceedings are conducted.A party to an arbitration cannot be allowed to lie by and then, if the award is unfavourable, seek to set it aside on the ground that during the proceedings the arbitrator gave a ruling or decision contrary to the rules of evidence which the party during the proceedings took no steps to question."We are, therefore, of the opinion that the Arbitrator cannot be said to have misconducted himself in the matter of his order on the question of privilege, nor are the appellants entitled to any relief on the question of depreciation based on the word provisional in the agreement.12.Mr. Nariman, the Additional Solicitor General, appearing on behalf of the respondents also contended that the appellants having specifically stated that their claims are based on the agreement and on nothing elseand all that the Arbitrator had to decide was as to the effect of the agreement, the Arbitrator had really to decide a question of law, i.e. of interpreting the document, the agreement of 6-5-53 and his decision is not open to challenge. We agree with him: see the decisions in Durga Prosad v. Sewkishendas, AIR 1949 PC 334 and Ghulam Jilani v. Muhammad Hassan, (1901) 29 Ind App 51 (PC).Point 3:13. The appellants contention that the Arbitrator has no jurisdiction in respect of the land and buildings is also without substance because in their claim before him the appellants themselves had contended that the land should be conveyed to them. The agreement makes it quite clear that only the use of the land was made available to the Society for growing the fodder and other foods for the animals and the limit of 135 acres was fixed against 80 milch cattle. It was also made clear that if there is any deficiency in the number of cattle 1 3/4 acres would have to be relinquished for every head of cattle found short. It is also clear from the evidence that instead of using the land for raising fodder the appellants used it for raising cash crops. The appellants President himself admitted that they raised Paddy, Jowar etc. He maintained, contrary to what is found in the contract, that there was no restriction against raising crops other than fodder crops. Some basis was sought for this argument on behalf of the appellants in the evidence of the Administrator wherein he said that the contract had not been rescinded. But he had been working as Administrator only from 1-6-1960 and the arbitration had started even on 4-9-1959. As already mentioned, in the claim of the appellants and the counterclaim of respondents as well as in the arguments on behalf of the Government the return of the land was asked for because the Society had used the land for purposes other than stipulated in the agreement and not because the agreement was terminated. Therefore, this argument about the respondents not being entitled to claim return of the land because agreement had not been terminated seems to have been an after thought. This plea has been taken for the first time only in the special leave petition. We hold that there is no merit in this argument and the Arbitrator was competent to give an award on the matter of return of the land.Point 5:14. We accept the conclusion of the Courts below that there is no substance in this contention.15. A bare look at the facts of this case would show that having received cattle worth about sixty thousand rupees as well as other equipment worth over ten thousand rupees and not having paid the instalments as stipulated in the agreement it needed a lot of nerve on the part of the appellants to have made out a claim of Rs. 1,26,800/- against the Administration However, they have succeeded in hanging on to the land and other facilities for over 14 years since the date of reference to the arbitration. There is no justice at all in their claim and we do not see any defect in the award or in the judgment of the Courts below. They have merely tried to drag on the case relying on any little thing that was available more as a matter of afterthought. | 0[ds]There is no doubt that if his complaint that the Arbitrator did not give a ruling on the question of privilege claimed by the respondents in respect of certain documents summoned by the appellant and did not decide the question or pass an order therein onthe date on which the order in the file purports to have been made but had subsequently interpolated it, is sustained the appellant would be entitled to succeed completely and the award would have to be set aside in toto without reference to any other consideration. No award given by an Arbitrator who is held guilty of such fraudulent misconduct could ever be upheld. But having given our most anxious consideration to this question we are not able to persuade ourselves to take a view different from that of the learned Subordinate Judge and the High Court who considered the matter. In addition to relying on the evidence of their two witnesses the argument of the appellants was, based on these facts: The appellants had given their written arguments regarding the question of privilege even onThe written arguments on behalf of the respondents was given onand the appellants had reiterated their arguments on this question even in their rejoinder onThe order sheet does not show that the order regarding privilege was pronounced onWe agree with the High Court in this view. That is the most charitable view to take in the circumstances of this case It is obvious that till they found that the award was against them the appellants did not make any serious complaint about the question of privilege. The documents in respect of which privilege was claimed related to the interpretation of the word provisional in respect of 47 Nilliand 39 Tharparkar Cows costing Rs. 11941.00, against both of which the word provisional appears. The appellants case was that this word was put in because depreciation was to be allowed in respect of those cattle and the final cost of these two sets of animals was not decided by that time. The Arbitrator himself had occasion to look into the documents before deciding on the question of privilege and we have also had the benefit of looking into these documents. They are not very helpful to the appellants except enabling them to make a grievance of it. There was already on record a copy of the standing order of the Military Cattle Farm at Ambala regarding this question of depreciation wherein it is pointed out that for the lactation period of 9 months a sum of Rs. 150 was to be allowed as depreciation and thereafter at the rate of 10 per cent of the book value of the animal. Based on this the appellant had claimed a depreciation of Rs.We have looked into the calculation sheet filed by the appellant before the Arbitrator. Curiously nobody seems at any stage, either before the Arbitrator or before the Subordinate Judge or before the High Court to have cared to have a look at these documents at all. To take only one instance, in respect of the Nilli She Buffalo the value is given as Rs. 750 and the depreciation as Rs. 600 instead of showing the depreciation as Rs 150 and the price of the cattle as Rs. 600. Same is the case with regard to the Tharparkar Cows. If this had been looked into it would have been at once noticed that in respect of the depreciation, even if they had been entitled to it, the appellants could not claim Rs. 33,083/but only about Rs. 6000/e also think that there is considerable force in the argument on behalf of the respondents that as the parties had filed applications for extension of time for pronouncing of award after the hearing was over onthey would have raised this question at that time if they had really any grievance. In fact in their letter datedthe appellants showed their interest in the award proceedings coming to a close soon.9. We do not, therefore, feel that we would be justified in reversing the concurrent findings of both the Courts below that the order regarding privilege was made and pronounced on the date on which it was made. There is no particular reason why the Arbitrator should have resorted to this fraudulent act. The award would not have been weakened in any way if the documents in respect of which privilege had been claimed had been placed on record. Nor is it in any way strengthened by the order on the question of privilege.10. We may also refer to the fact that soon after the agreement onthe appellants Manager had written to the Chief Accountant of the Rehabilitation Colony that the cost of the animals was mentioned as provisional because the books were not complete and he requested that exact book value of the animals as onmay be intimated to him. Another document, Ext.also shows that the appellants knew what the book value was. Incidentally the same figures appear in the calculations filed by the appellants on the question of depreciation in respect of the Tharparkar Cows. To the same effect is the letter Ext.3. The figures given by the appellants Society in Ext.Nariman, the Additional Solicitor General, appearing on behalf of the respondents also contended that the appellants having specifically stated that their claims are based on the agreement and on nothing elseand all that the Arbitrator had to decide was as to the effect of the agreement, the Arbitrator had really to decide a question of law, i.e. of interpreting the document, the agreement ofand his decision is not open to challenge. We agree withThe appellants contention that the Arbitrator has no jurisdiction in respect of the land and buildings is also without substance because in their claim before him the appellants themselves had contended that the land should be conveyed to them. The agreement makes it quite clear that only the use of the land was made available to the Society for growing the fodder and other foods for the animals and the limit of 135 acres was fixed against 80 milch cattle. It was also made clear that if there is any deficiency in the number of cattle 1 3/4 acres would have to be relinquished for every head of cattle found short. It is also clear from the evidence that instead of using the land for raising fodder the appellants used it for raising cash crops. The appellants President himself admitted that they raised Paddy, Jowar etc. He maintained, contrary to what is found in the contract, that there was no restriction against raising crops other than fodder crops. Some basis was sought for this argument on behalf of the appellants in the evidence of the Administrator wherein he said that the contract had not been rescinded. But he had been working as Administrator only fromand the arbitration had started even onAs already mentioned, in the claim of the appellants and the counterclaim of respondents as well as in the arguments on behalf of the Government the return of the land was asked for because the Society had used the land for purposes other than stipulated in the agreement and not because the agreement was terminated. Therefore, this argument about the respondents not being entitled to claim return of the land because agreement had not been terminated seems to have been an after thought. This plea has been taken for the first time only in the special leave petition. We hold that there is no merit in this argument and the Arbitrator was competent to give an award on the matter of return of the land.We accept the conclusion of the Courts below that there is no substance in this contention.15. A bare look at the facts of this case would show that having received cattle worth about sixty thousand rupees as well as other equipment worth over ten thousand rupees and not having paid the instalments as stipulated in the agreement it needed a lot of nerve on the part of the appellants to have made out a claim of Rs. 1,26,800/against the Administration However, they have succeeded in hanging on to the land and other facilities for over 14 years since the date of reference to the arbitration. There is no justice at all in their claim and we do not see any defect in the award or in the judgment of the Courts below. They have merely tried to drag on the case relying on any little thing that was available more as a matter of afterthought. | 0 | 3,128 | 1,501 | ### Instruction:
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to a close soon.9. We do not, therefore, feel that we would be justified in reversing the concurrent findings of both the Courts below that the order regarding privilege was made and pronounced on the date on which it was made. There is no particular reason why the Arbitrator should have resorted to this fraudulent act. The award would not have been weakened in any way if the documents in respect of which privilege had been claimed had been placed on record. Nor is it in any way strengthened by the order on the question of privilege.10. We may also refer to the fact that soon after the agreement on 28-5-53 the appellants Manager had written to the Chief Accountant of the Rehabilitation Colony that the cost of the animals was mentioned as provisional because the books were not complete and he requested that exact book value of the animals as on 1-10-1950 may be intimated to him. Another document, Ext. A-36 also shows that the appellants knew what the book value was. Incidentally the same figures appear in the calculations filed by the appellants on the question of depreciation in respect of the Tharparkar Cows. To the same effect is the letter Ext. R-5 dated 14-12-53. The figures given by the appellants Society in Ext. R-7 dated 2710-52 are the same as found in the appellants counter claim before the Arbitrator.11. In the circumstances the appellants should also be deemed to have waived any objections that they may have had on the question of privilege. In "Russell on Arbitration" (Seventeenth Edition) at page 182 statement of law is given as follows :"Objections to a decision of the arbitrator as to whether or not to admit evidence, may be waived, like other objections to the manner in which the proceedings are conducted.A party to an arbitration cannot be allowed to lie by and then, if the award is unfavourable, seek to set it aside on the ground that during the proceedings the arbitrator gave a ruling or decision contrary to the rules of evidence which the party during the proceedings took no steps to question."We are, therefore, of the opinion that the Arbitrator cannot be said to have misconducted himself in the matter of his order on the question of privilege, nor are the appellants entitled to any relief on the question of depreciation based on the word provisional in the agreement.12.Mr. Nariman, the Additional Solicitor General, appearing on behalf of the respondents also contended that the appellants having specifically stated that their claims are based on the agreement and on nothing elseand all that the Arbitrator had to decide was as to the effect of the agreement, the Arbitrator had really to decide a question of law, i.e. of interpreting the document, the agreement of 6-5-53 and his decision is not open to challenge. We agree with him: see the decisions in Durga Prosad v. Sewkishendas, AIR 1949 PC 334 and Ghulam Jilani v. Muhammad Hassan, (1901) 29 Ind App 51 (PC).Point 3:13. The appellants contention that the Arbitrator has no jurisdiction in respect of the land and buildings is also without substance because in their claim before him the appellants themselves had contended that the land should be conveyed to them. The agreement makes it quite clear that only the use of the land was made available to the Society for growing the fodder and other foods for the animals and the limit of 135 acres was fixed against 80 milch cattle. It was also made clear that if there is any deficiency in the number of cattle 1 3/4 acres would have to be relinquished for every head of cattle found short. It is also clear from the evidence that instead of using the land for raising fodder the appellants used it for raising cash crops. The appellants President himself admitted that they raised Paddy, Jowar etc. He maintained, contrary to what is found in the contract, that there was no restriction against raising crops other than fodder crops. Some basis was sought for this argument on behalf of the appellants in the evidence of the Administrator wherein he said that the contract had not been rescinded. But he had been working as Administrator only from 1-6-1960 and the arbitration had started even on 4-9-1959. As already mentioned, in the claim of the appellants and the counterclaim of respondents as well as in the arguments on behalf of the Government the return of the land was asked for because the Society had used the land for purposes other than stipulated in the agreement and not because the agreement was terminated. Therefore, this argument about the respondents not being entitled to claim return of the land because agreement had not been terminated seems to have been an after thought. This plea has been taken for the first time only in the special leave petition. We hold that there is no merit in this argument and the Arbitrator was competent to give an award on the matter of return of the land.Point 5:14. We accept the conclusion of the Courts below that there is no substance in this contention.15. A bare look at the facts of this case would show that having received cattle worth about sixty thousand rupees as well as other equipment worth over ten thousand rupees and not having paid the instalments as stipulated in the agreement it needed a lot of nerve on the part of the appellants to have made out a claim of Rs. 1,26,800/- against the Administration However, they have succeeded in hanging on to the land and other facilities for over 14 years since the date of reference to the arbitration. There is no justice at all in their claim and we do not see any defect in the award or in the judgment of the Courts below. They have merely tried to drag on the case relying on any little thing that was available more as a matter of afterthought.
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to be allowed as depreciation and thereafter at the rate of 10 per cent of the book value of the animal. Based on this the appellant had claimed a depreciation of Rs.We have looked into the calculation sheet filed by the appellant before the Arbitrator. Curiously nobody seems at any stage, either before the Arbitrator or before the Subordinate Judge or before the High Court to have cared to have a look at these documents at all. To take only one instance, in respect of the Nilli She Buffalo the value is given as Rs. 750 and the depreciation as Rs. 600 instead of showing the depreciation as Rs 150 and the price of the cattle as Rs. 600. Same is the case with regard to the Tharparkar Cows. If this had been looked into it would have been at once noticed that in respect of the depreciation, even if they had been entitled to it, the appellants could not claim Rs. 33,083/but only about Rs. 6000/e also think that there is considerable force in the argument on behalf of the respondents that as the parties had filed applications for extension of time for pronouncing of award after the hearing was over onthey would have raised this question at that time if they had really any grievance. In fact in their letter datedthe appellants showed their interest in the award proceedings coming to a close soon.9. We do not, therefore, feel that we would be justified in reversing the concurrent findings of both the Courts below that the order regarding privilege was made and pronounced on the date on which it was made. There is no particular reason why the Arbitrator should have resorted to this fraudulent act. The award would not have been weakened in any way if the documents in respect of which privilege had been claimed had been placed on record. Nor is it in any way strengthened by the order on the question of privilege.10. We may also refer to the fact that soon after the agreement onthe appellants Manager had written to the Chief Accountant of the Rehabilitation Colony that the cost of the animals was mentioned as provisional because the books were not complete and he requested that exact book value of the animals as onmay be intimated to him. Another document, Ext.also shows that the appellants knew what the book value was. Incidentally the same figures appear in the calculations filed by the appellants on the question of depreciation in respect of the Tharparkar Cows. To the same effect is the letter Ext.3. The figures given by the appellants Society in Ext.Nariman, the Additional Solicitor General, appearing on behalf of the respondents also contended that the appellants having specifically stated that their claims are based on the agreement and on nothing elseand all that the Arbitrator had to decide was as to the effect of the agreement, the Arbitrator had really to decide a question of law, i.e. of interpreting the document, the agreement ofand his decision is not open to challenge. We agree withThe appellants contention that the Arbitrator has no jurisdiction in respect of the land and buildings is also without substance because in their claim before him the appellants themselves had contended that the land should be conveyed to them. The agreement makes it quite clear that only the use of the land was made available to the Society for growing the fodder and other foods for the animals and the limit of 135 acres was fixed against 80 milch cattle. It was also made clear that if there is any deficiency in the number of cattle 1 3/4 acres would have to be relinquished for every head of cattle found short. It is also clear from the evidence that instead of using the land for raising fodder the appellants used it for raising cash crops. The appellants President himself admitted that they raised Paddy, Jowar etc. He maintained, contrary to what is found in the contract, that there was no restriction against raising crops other than fodder crops. Some basis was sought for this argument on behalf of the appellants in the evidence of the Administrator wherein he said that the contract had not been rescinded. But he had been working as Administrator only fromand the arbitration had started even onAs already mentioned, in the claim of the appellants and the counterclaim of respondents as well as in the arguments on behalf of the Government the return of the land was asked for because the Society had used the land for purposes other than stipulated in the agreement and not because the agreement was terminated. Therefore, this argument about the respondents not being entitled to claim return of the land because agreement had not been terminated seems to have been an after thought. This plea has been taken for the first time only in the special leave petition. We hold that there is no merit in this argument and the Arbitrator was competent to give an award on the matter of return of the land.We accept the conclusion of the Courts below that there is no substance in this contention.15. A bare look at the facts of this case would show that having received cattle worth about sixty thousand rupees as well as other equipment worth over ten thousand rupees and not having paid the instalments as stipulated in the agreement it needed a lot of nerve on the part of the appellants to have made out a claim of Rs. 1,26,800/against the Administration However, they have succeeded in hanging on to the land and other facilities for over 14 years since the date of reference to the arbitration. There is no justice at all in their claim and we do not see any defect in the award or in the judgment of the Courts below. They have merely tried to drag on the case relying on any little thing that was available more as a matter of afterthought.
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Sri Laxman @ Laxman Mourya Vs. Divisional Manager, Oritl.Ins.Co.Ltd&Anr | Loss of expectation of life. 14. In the affidavit filed by him before the Tribunal, the appellant categorically stated that due to accident he had suffered injuries on the abdomen and other parts of the body; that he was shifted to Bowring Hospital, where he remained for 15 days; that thereafter, he went to his native place at Gorakhpur and remained admitted in Royal Hospital from 29.9.2003 to 10.10.2003; that he had also taken treatment at Sri Krishna Hospital and Urology Centre as indoor patient from 12.10.2003 to 13.10.2003 and that he had spent Rs. 40,000/- towards medicines, conveyance and other charges. He further stated that due to accident, he was finding it difficult to pass urine and was having severe pain in the lower part of the abdomen; that the Doctors had advised him to undergo an operation to set right the problem but due to financial constraint he was not in a position to undergo the surgery. As regards his earning, the appellant gave out that at the time of accident, he was working as Carpenter and was earning Rs. 5,000/- per month and that after the accident he was not in a position to work as carpenter. 15. In his affidavit, PW-2 Dr. S.Ranjanna confirmed that the appellant was admitted in Bowring and Lady Curzon Hospital on 8.9.2003 and was discharged on 22.9.2003; that he had examined the patient on 2.5.2005 and found that he was having altered gait, frequency of inculcation and was finding difficult to sit with cross-legs or squat. In cross-examination, Dr. Ranjanna made the following statement: "1) Patient walks with a riding gait.2) Tenderness present over pubic region.3) His movements on right side are restricted by 30%.4) Wasting of right pelive surrender by 6 cms.5) Wasting of right leg muscles by 3 cms.6) Difficulty to pass urine.As per urologist opinion he need surgery for STRUCTURE URETHRA.Check X-ray shows 698/10.1.2003 evidence of old fracture of both rams of both pelive bones noted with altered shape of selive inset.Due to above disabilities he cannot pass the urine smoothly he will have disturbed sleep due to frequency of ... He cannot sit crossed, difficulty to squat difficulty to lift any weight. He cannot do any hard manual work.After referring to various guidelines and including Alimco manual I am the opinion that the petitioner is having disability 26% of right lower limb & 25% due to urethral injury and 38% disabilities to the whole body. In view of this disabilities, the petitioner cannot work as a Carpenter and cannot do any other manual work also.I am herewith producing the following documents. Such as,1) Case Sheet.2) Recent examination O . P . Book3) Recent check X-ray." 16. Unfortunately, neither the Tribunal nor the High Court adverted to the criteria laid down by this Court for award of compensation under the two broad heads, i.e., pecuniary and non-pecuniary damages and awarded compensation, which cannot but be described as wholly unjust. 17. The respondents have not controverted the appellants assertion that at the time of accident his age was 24 years; that he was earning Rs.5,000/- per month as a Carpenter and that as a result of accident he had to remain in hospitals for different durations. Therefore, under the first head i.e, loss of earning and other gains during the period of hospitalisation (one month), the appellant is entitled to compensation of Rs.5,000/-. 18. It is also not in dispute that as a result of accident, the appellant suffered 26% disability of the right lower limb, 25% disability due to urethral injury and 38% disability to the whole body. Although, the percentage of the disability of whole body is 38, the evidence produced by the appellant in the form of his own affidavit and the affidavit of PW-2 shows that he will not be able to work as carpenter or do any manual work throughout his life. In other words, even though the disability suffered by the appellant is not 100 per cent, his working capacity has been reduced to zero. However, keeping in view the degree of disability, i.e. 38%, we hold that he shall be entitled to compensation of Rs.3,32,640/- (38% of Rs.5,000.00 = Rs.1,540/- x 12 x 18) for loss of future earning.19. The issue regarding expenses for future treatment is required to be decided in the light of the evidence produced by the parties. Although, in his evidence, PW-2 Dr. S Ranjanna has stated that the appellant would require future treatment but no concrete evidence was produced by him, i.e. appellant, about the possible expenses which he may incur for treatment in future. This phenomenon is not unusual in such cases particularly when the claimant belongs to financially weaker strata of the society. He cannot engage a competent lawyer to effectively prosecute his case before the Tribunal and the High Court. However, as held in R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the Tribunal and the Court can fix the amount of compensation by making some guess work. Keeping in view the nature of injuries suffered by the appellant and the fact that he will have to take treatment throughout life, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- under that head.20. For pain, suffering and trauma caused due to the accident, a sum of Rs.1,50,000/- deserves to be awarded to the appellant. Likewise, for the loss of amenities including the loss of prospects of marriage which has become an illusion for the appellant, it will be just and proper to award a sum of Rs.2 lacs.21. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident. | 1[ds]17. The respondents have not controverted the appellants assertion that at the time of accident his age was 24 years; that he was earning Rs.5,000/It is also not in dispute that as a result of accident, the appellant suffered 26% disability of the right lower limb, 25% disability due to urethral injury and 38% disability to the whole body. Although, the percentage of the disability of whole body is 38, the evidence produced by the appellant in the form of his own affidavit and the affidavit ofshows that he will not be able to work as carpenter or do any manual work throughout his life. In other words, even though the disability suffered by the appellant is not 100 per cent, his working capacity has been reduced to zero. However, keeping in view the degree of disability, i.e. 38%, we hold that he shall be entitled to compensation of Rs.3,32,640/(38% of Rs.5,000.00 = Rs.1,540/x 12 x 18) for loss of future earning.19. The issue regarding expenses for future treatment is required to be decided in the light of the evidence produced by the parties. Although, in his evidence,Dr. S Ranjanna has stated that the appellant would require future treatment but no concrete evidence was produced by him, i.e. appellant, about the possible expenses which he may incur for treatment in future. This phenomenon is not unusual in such cases particularly when the claimant belongs to financially weaker strata of the society. He cannot engage a competent lawyer to effectively prosecute his case before the Tribunal and the High Court. However, as held in R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the Tribunal and the Court can fix the amount of compensation by making some guess work. Keeping in view the nature of injuries suffered by the appellant and the fact that he will have to take treatment throughout life, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/under that head.20. For pain, suffering and trauma caused due to the accident, a sum of Rs.1,50,000/deserves to be awarded to the appellant. Likewise, for the loss of amenities including the loss of prospects of marriage which has become an illusion for the appellant, it will be just and proper to award a sum of Rs.2 lacs.21. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident. | 1 | 3,784 | 510 | ### 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:
Loss of expectation of life. 14. In the affidavit filed by him before the Tribunal, the appellant categorically stated that due to accident he had suffered injuries on the abdomen and other parts of the body; that he was shifted to Bowring Hospital, where he remained for 15 days; that thereafter, he went to his native place at Gorakhpur and remained admitted in Royal Hospital from 29.9.2003 to 10.10.2003; that he had also taken treatment at Sri Krishna Hospital and Urology Centre as indoor patient from 12.10.2003 to 13.10.2003 and that he had spent Rs. 40,000/- towards medicines, conveyance and other charges. He further stated that due to accident, he was finding it difficult to pass urine and was having severe pain in the lower part of the abdomen; that the Doctors had advised him to undergo an operation to set right the problem but due to financial constraint he was not in a position to undergo the surgery. As regards his earning, the appellant gave out that at the time of accident, he was working as Carpenter and was earning Rs. 5,000/- per month and that after the accident he was not in a position to work as carpenter. 15. In his affidavit, PW-2 Dr. S.Ranjanna confirmed that the appellant was admitted in Bowring and Lady Curzon Hospital on 8.9.2003 and was discharged on 22.9.2003; that he had examined the patient on 2.5.2005 and found that he was having altered gait, frequency of inculcation and was finding difficult to sit with cross-legs or squat. In cross-examination, Dr. Ranjanna made the following statement: "1) Patient walks with a riding gait.2) Tenderness present over pubic region.3) His movements on right side are restricted by 30%.4) Wasting of right pelive surrender by 6 cms.5) Wasting of right leg muscles by 3 cms.6) Difficulty to pass urine.As per urologist opinion he need surgery for STRUCTURE URETHRA.Check X-ray shows 698/10.1.2003 evidence of old fracture of both rams of both pelive bones noted with altered shape of selive inset.Due to above disabilities he cannot pass the urine smoothly he will have disturbed sleep due to frequency of ... He cannot sit crossed, difficulty to squat difficulty to lift any weight. He cannot do any hard manual work.After referring to various guidelines and including Alimco manual I am the opinion that the petitioner is having disability 26% of right lower limb & 25% due to urethral injury and 38% disabilities to the whole body. In view of this disabilities, the petitioner cannot work as a Carpenter and cannot do any other manual work also.I am herewith producing the following documents. Such as,1) Case Sheet.2) Recent examination O . P . Book3) Recent check X-ray." 16. Unfortunately, neither the Tribunal nor the High Court adverted to the criteria laid down by this Court for award of compensation under the two broad heads, i.e., pecuniary and non-pecuniary damages and awarded compensation, which cannot but be described as wholly unjust. 17. The respondents have not controverted the appellants assertion that at the time of accident his age was 24 years; that he was earning Rs.5,000/- per month as a Carpenter and that as a result of accident he had to remain in hospitals for different durations. Therefore, under the first head i.e, loss of earning and other gains during the period of hospitalisation (one month), the appellant is entitled to compensation of Rs.5,000/-. 18. It is also not in dispute that as a result of accident, the appellant suffered 26% disability of the right lower limb, 25% disability due to urethral injury and 38% disability to the whole body. Although, the percentage of the disability of whole body is 38, the evidence produced by the appellant in the form of his own affidavit and the affidavit of PW-2 shows that he will not be able to work as carpenter or do any manual work throughout his life. In other words, even though the disability suffered by the appellant is not 100 per cent, his working capacity has been reduced to zero. However, keeping in view the degree of disability, i.e. 38%, we hold that he shall be entitled to compensation of Rs.3,32,640/- (38% of Rs.5,000.00 = Rs.1,540/- x 12 x 18) for loss of future earning.19. The issue regarding expenses for future treatment is required to be decided in the light of the evidence produced by the parties. Although, in his evidence, PW-2 Dr. S Ranjanna has stated that the appellant would require future treatment but no concrete evidence was produced by him, i.e. appellant, about the possible expenses which he may incur for treatment in future. This phenomenon is not unusual in such cases particularly when the claimant belongs to financially weaker strata of the society. He cannot engage a competent lawyer to effectively prosecute his case before the Tribunal and the High Court. However, as held in R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the Tribunal and the Court can fix the amount of compensation by making some guess work. Keeping in view the nature of injuries suffered by the appellant and the fact that he will have to take treatment throughout life, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- under that head.20. For pain, suffering and trauma caused due to the accident, a sum of Rs.1,50,000/- deserves to be awarded to the appellant. Likewise, for the loss of amenities including the loss of prospects of marriage which has become an illusion for the appellant, it will be just and proper to award a sum of Rs.2 lacs.21. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.
### Response:
1
### Explanation:
17. The respondents have not controverted the appellants assertion that at the time of accident his age was 24 years; that he was earning Rs.5,000/It is also not in dispute that as a result of accident, the appellant suffered 26% disability of the right lower limb, 25% disability due to urethral injury and 38% disability to the whole body. Although, the percentage of the disability of whole body is 38, the evidence produced by the appellant in the form of his own affidavit and the affidavit ofshows that he will not be able to work as carpenter or do any manual work throughout his life. In other words, even though the disability suffered by the appellant is not 100 per cent, his working capacity has been reduced to zero. However, keeping in view the degree of disability, i.e. 38%, we hold that he shall be entitled to compensation of Rs.3,32,640/(38% of Rs.5,000.00 = Rs.1,540/x 12 x 18) for loss of future earning.19. The issue regarding expenses for future treatment is required to be decided in the light of the evidence produced by the parties. Although, in his evidence,Dr. S Ranjanna has stated that the appellant would require future treatment but no concrete evidence was produced by him, i.e. appellant, about the possible expenses which he may incur for treatment in future. This phenomenon is not unusual in such cases particularly when the claimant belongs to financially weaker strata of the society. He cannot engage a competent lawyer to effectively prosecute his case before the Tribunal and the High Court. However, as held in R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the Tribunal and the Court can fix the amount of compensation by making some guess work. Keeping in view the nature of injuries suffered by the appellant and the fact that he will have to take treatment throughout life, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/under that head.20. For pain, suffering and trauma caused due to the accident, a sum of Rs.1,50,000/deserves to be awarded to the appellant. Likewise, for the loss of amenities including the loss of prospects of marriage which has become an illusion for the appellant, it will be just and proper to award a sum of Rs.2 lacs.21. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.
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Central Coalfields Limited Through its Chairman and Managing Director & Ors Vs. Smt. Parden Oraon | being the reason for rejection of request for compassionate appointment, the High Court observed that there is no policy decision of the appellant company not to offer compassionate appointment in cases of double employment. As the order of termination of services of Respondents husband was quashed by the High Court, Respondents son was held to be entitled for appointment. The Division Bench of the High Court dismissed the appeal filed by the appellants. The National Coal Wage Agreement was examined in detail by the Division Bench to come to a conclusion that civil death of employee cannot be a disqualification for compassionate appointment of the member of his family. The contention of the Appellant that the decision was taken by the Directors (Personnel) not to provide employment to the children of employees who have suffered civil death was not accepted by the Division Bench as it could not be termed as a policy decision. The High Court observed that there is no delay in seeking compassionate appointment after having obtained a decree from the Civil Court declaring the Respondents husband to have suffered civil death. The Division Bench upheld the finding of the Single Judge of the High Court that there is no clause in the National Coal Wage Agreement which prevents a claim for compassionate appointment on the ground that another member of the family is in service. 6. The contention of the Appellant is that there is no right for compassionate appointment available to the surviving family members of the deceased employee in harness and one must seek appointment on compassionate basis in accordance with the relevant rules, regulations and schemes. It was submitted on behalf of the Appellants that the Respondents husband was missing since 2002. The suit filed by the Respondent seeking for declaration of civil death of her husband was in 2009. The request for compassionate appointment was made much later in 2013. In view of the delay in making a claim for compassionate appointment, the very purpose of providing compassionate appointment owing to the death of the breadwinner is not served. In addition, the Respondent was in service of the Appellant. It was also argued that though the National Coal Wage Agreement does not contain any clause relating to the dependents of the employee who suffered civil death to be ineligible for compassionate appointment, the decision taken by the Directors (Personnel) in 2013 should be treated as a policy decision governing compassionate appointment. 7. On behalf of the Respondent, it was submitted that there is no provision in the National Coal Wage Agreement that a family member of an employee who suffered civil death is not eligible for compassionate appointment. There is also no provision that the Respondents son cannot be given compassionate appointment on the ground that she is working in the company. The Respondent submitted that she was diligent in participating in the departmental inquiry initiated against her husband and in filing the civil suit for declaration of civil death of her husband immediately on completion of 7 years from 2002. According to the Respondent, the order of termination of services of her husband was set aside by the High Court which has become final. In any event, the respondent has retired from service in 2018 and her son needs the employment to take care of his family. 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over. 9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing. | 1[ds]8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing. | 1 | 1,694 | 480 | ### 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:
being the reason for rejection of request for compassionate appointment, the High Court observed that there is no policy decision of the appellant company not to offer compassionate appointment in cases of double employment. As the order of termination of services of Respondents husband was quashed by the High Court, Respondents son was held to be entitled for appointment. The Division Bench of the High Court dismissed the appeal filed by the appellants. The National Coal Wage Agreement was examined in detail by the Division Bench to come to a conclusion that civil death of employee cannot be a disqualification for compassionate appointment of the member of his family. The contention of the Appellant that the decision was taken by the Directors (Personnel) not to provide employment to the children of employees who have suffered civil death was not accepted by the Division Bench as it could not be termed as a policy decision. The High Court observed that there is no delay in seeking compassionate appointment after having obtained a decree from the Civil Court declaring the Respondents husband to have suffered civil death. The Division Bench upheld the finding of the Single Judge of the High Court that there is no clause in the National Coal Wage Agreement which prevents a claim for compassionate appointment on the ground that another member of the family is in service. 6. The contention of the Appellant is that there is no right for compassionate appointment available to the surviving family members of the deceased employee in harness and one must seek appointment on compassionate basis in accordance with the relevant rules, regulations and schemes. It was submitted on behalf of the Appellants that the Respondents husband was missing since 2002. The suit filed by the Respondent seeking for declaration of civil death of her husband was in 2009. The request for compassionate appointment was made much later in 2013. In view of the delay in making a claim for compassionate appointment, the very purpose of providing compassionate appointment owing to the death of the breadwinner is not served. In addition, the Respondent was in service of the Appellant. It was also argued that though the National Coal Wage Agreement does not contain any clause relating to the dependents of the employee who suffered civil death to be ineligible for compassionate appointment, the decision taken by the Directors (Personnel) in 2013 should be treated as a policy decision governing compassionate appointment. 7. On behalf of the Respondent, it was submitted that there is no provision in the National Coal Wage Agreement that a family member of an employee who suffered civil death is not eligible for compassionate appointment. There is also no provision that the Respondents son cannot be given compassionate appointment on the ground that she is working in the company. The Respondent submitted that she was diligent in participating in the departmental inquiry initiated against her husband and in filing the civil suit for declaration of civil death of her husband immediately on completion of 7 years from 2002. According to the Respondent, the order of termination of services of her husband was set aside by the High Court which has become final. In any event, the respondent has retired from service in 2018 and her son needs the employment to take care of his family. 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over. 9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.
### Response:
1
### Explanation:
8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.
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RAMAN SINGH Vs. DISTRICT INSPECTOR OF SCHOOLS | appellant continued to be employed in the post. The salary of the appellant was stopped.7. The writ petition filed by the appellant was dismissed by a learned Single Judge of the High Court on 9 October 2013. The appellant filed a Special Appeal against the dismissal of the petition. 8. During the pendency of the Special Appeal, there was an interim order in favour of the appellant in terms similar to the interim protection which was granted earlier on 16 April 1996 by the Single Judge of the High Court. By the impugned order dated 30 October 2017, the Special Appeal was dismissed by the Division Bench. The High Court held that the appellant was appointed in a leave vacancy, in terms of the Second Removal of Difficulties Order 1981. The High Court observed that in the absence of approval to his appointment by the competent authority, any further direction for his continuance or for payment of salary is not permissible in law.9. From the order of the High Court, it emerges that a counter affidavit was filed in the course of the Special Appeal where it was stated on behalf of the DIOS that by a letter dated 14 July 1994, approval for the appointment of the appellant had been declined since it was not in conformity with the provisions of Section 18 of the UP Secondary Education Services Selection Board Act 1982 and the Removal of Difficulties Order. Consequently, while affirming the judgment of the learned Single Judge, the Division Bench directed that the salary which was paid over till the date of the judgment shall not be recovered, but the appellant will not be entitled to any further emoluments.10. Assailing the decision of the Division Bench in Special Appeal, the appellant moved this Court under Article 136 of the Constitution of India. On 10 January 2018, when the Special Leave Petition was taken up, the following statement made on behalf of the appellant was recorded:?Learned counsel for the petitioner says that he does not claim any right over the post of lecturer in the school, but says that the petitioner may be allowed to continue till regular or other appointment is made.?11. Subsequently on 13 August 2018, there was a direction that the salary should be paid to the appellant for the period for which he has worked. Admittedly, these directions have been complied with. The appellant continues to remain in service and his salary has been paid.12. Ms. Meenakshi Arora, learned Senior Counsel appearing on behalf of the appellant submits that the appellant has seriously disputed the stand of the DIOS to the effect that his services had been disapproved by the issuance of a letter dated 14 July 1994. It has been urged that there was no reference to this letter before the learned Single Judge and it was only when a counter affidavit was filed in the Special Appeal before the Division Bench that the department adverted to the issuance of this letter declining approval. It has been urged that in consequence, though under the interim orders of the High Court, the appellant has continued to remain in service and discharged his duties since 1993 and as the senior most teacher, the management has submitted a proposal for the continuance of the appellant as an in-charge principal.13. On the other hand, it has been urged Mr. Tanmaya Agarwal, learned Senior Counsel appearing on behalf of the first respondent that the High Court has correctly come to the conclusion that the ad hoc appointment of the appellant could not have, in any case materialised into a substantive appointment, on the death of the then incumbent. It has been urged that no procedure was followed in making a regular appointment and the law has since been settled in a judgment of a Full Bench of the Allahabad High Court in Pramila Mishra v Deputy Director of Education.1997 (2) ESC 1284, ALL(FB) The ad-hoc appointment, necessarily came to an end upon the ceasing of the short term vacancy on the death of the incumbent. Hence, it was urged that there was no vested right on the part of the appellant to claim a regular appointment or, for that matter, to continue in service.14. The appellant was appointed purely on an ad hoc basis in a leave vacancy which arose in the institution. On the death of the regularly appointed candidate, the leave vacancy ceased to exist. Once a substantive vacancy arose, it was required to be filled up in accordance with law. The appellant had no right or entitlement to claim that his appointment on an ad-hoc basis in a leave vacancy should be converted into a substantive appointment. The view which has been taken by the learned Single Judge and in appeal by the Division Bench, therefore, cannot be faulted.15. It is evident that the purported appointment of the appellant to a substantive post was without the approval of the DIOS. The DIOS had rejected the application of the management to absorb the appellant to a substantive post over 24 years ago on the ground that his appointment would be in violation of the applicable law. No procedure as required by law was followed in making the appointment. The appellant however instituted proceedings and has continued in service by virtue of the interim orders which were passed in the writ proceedings by the learned Single Judge and thereafter, during the pendency of the Special Appeal, by the Division Bench. Even during the pendency of these proceedings, following the statement which has been made on his behalf on 10 January 2018, there was a direction on 13 August 2018 for the payment of the salary to him for the period for which he has worked. Eventually, the management proposed to post him as an in-charge Principal. Nem Singh, who was appointed in accordance with law in 1997, was allegedly prevented from joining his post. The method adopted by the appellant and the management is unsustainable in law. | 1[ds]14. The appellant was appointed purely on an ad hoc basis in a leave vacancy which arose in the institution. On the death of the regularly appointed candidate, the leave vacancy ceased to exist. Once a substantive vacancy arose, it was required to be filled up in accordance with law. The appellant had no right or entitlement to claim that his appointment on an ad-hoc basis in a leave vacancy should be converted into a substantive appointment. The view which has been taken by the learned Single Judge and in appeal by the Division Bench, therefore, cannot be faulted.15. It is evident that the purported appointment of the appellant to a substantive post was without the approval of the DIOS. The DIOS had rejected the application of the management to absorb the appellant to a substantive post over 24 years ago on the ground that his appointment would be in violation of the applicable law. No procedure as required by law was followed in making the appointment. The appellant however instituted proceedings and has continued in service by virtue of the interim orders which were passed in the writ proceedings by the learned Single Judge and thereafter, during the pendency of the Special Appeal, by the Division Bench. Even during the pendency of these proceedings, following the statement which has been made on his behalf on 10 January 2018, there was a direction on 13 August 2018 for the payment of the salary to him for the period for which he has worked. Eventually, the management proposed to post him as an in-charge Principal. Nem Singh, who was appointed in accordance with law in 1997, was allegedly prevented from joining his post. The method adopted by the appellant and the management is unsustainable in law. | 1 | 1,483 | 325 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
appellant continued to be employed in the post. The salary of the appellant was stopped.7. The writ petition filed by the appellant was dismissed by a learned Single Judge of the High Court on 9 October 2013. The appellant filed a Special Appeal against the dismissal of the petition. 8. During the pendency of the Special Appeal, there was an interim order in favour of the appellant in terms similar to the interim protection which was granted earlier on 16 April 1996 by the Single Judge of the High Court. By the impugned order dated 30 October 2017, the Special Appeal was dismissed by the Division Bench. The High Court held that the appellant was appointed in a leave vacancy, in terms of the Second Removal of Difficulties Order 1981. The High Court observed that in the absence of approval to his appointment by the competent authority, any further direction for his continuance or for payment of salary is not permissible in law.9. From the order of the High Court, it emerges that a counter affidavit was filed in the course of the Special Appeal where it was stated on behalf of the DIOS that by a letter dated 14 July 1994, approval for the appointment of the appellant had been declined since it was not in conformity with the provisions of Section 18 of the UP Secondary Education Services Selection Board Act 1982 and the Removal of Difficulties Order. Consequently, while affirming the judgment of the learned Single Judge, the Division Bench directed that the salary which was paid over till the date of the judgment shall not be recovered, but the appellant will not be entitled to any further emoluments.10. Assailing the decision of the Division Bench in Special Appeal, the appellant moved this Court under Article 136 of the Constitution of India. On 10 January 2018, when the Special Leave Petition was taken up, the following statement made on behalf of the appellant was recorded:?Learned counsel for the petitioner says that he does not claim any right over the post of lecturer in the school, but says that the petitioner may be allowed to continue till regular or other appointment is made.?11. Subsequently on 13 August 2018, there was a direction that the salary should be paid to the appellant for the period for which he has worked. Admittedly, these directions have been complied with. The appellant continues to remain in service and his salary has been paid.12. Ms. Meenakshi Arora, learned Senior Counsel appearing on behalf of the appellant submits that the appellant has seriously disputed the stand of the DIOS to the effect that his services had been disapproved by the issuance of a letter dated 14 July 1994. It has been urged that there was no reference to this letter before the learned Single Judge and it was only when a counter affidavit was filed in the Special Appeal before the Division Bench that the department adverted to the issuance of this letter declining approval. It has been urged that in consequence, though under the interim orders of the High Court, the appellant has continued to remain in service and discharged his duties since 1993 and as the senior most teacher, the management has submitted a proposal for the continuance of the appellant as an in-charge principal.13. On the other hand, it has been urged Mr. Tanmaya Agarwal, learned Senior Counsel appearing on behalf of the first respondent that the High Court has correctly come to the conclusion that the ad hoc appointment of the appellant could not have, in any case materialised into a substantive appointment, on the death of the then incumbent. It has been urged that no procedure was followed in making a regular appointment and the law has since been settled in a judgment of a Full Bench of the Allahabad High Court in Pramila Mishra v Deputy Director of Education.1997 (2) ESC 1284, ALL(FB) The ad-hoc appointment, necessarily came to an end upon the ceasing of the short term vacancy on the death of the incumbent. Hence, it was urged that there was no vested right on the part of the appellant to claim a regular appointment or, for that matter, to continue in service.14. The appellant was appointed purely on an ad hoc basis in a leave vacancy which arose in the institution. On the death of the regularly appointed candidate, the leave vacancy ceased to exist. Once a substantive vacancy arose, it was required to be filled up in accordance with law. The appellant had no right or entitlement to claim that his appointment on an ad-hoc basis in a leave vacancy should be converted into a substantive appointment. The view which has been taken by the learned Single Judge and in appeal by the Division Bench, therefore, cannot be faulted.15. It is evident that the purported appointment of the appellant to a substantive post was without the approval of the DIOS. The DIOS had rejected the application of the management to absorb the appellant to a substantive post over 24 years ago on the ground that his appointment would be in violation of the applicable law. No procedure as required by law was followed in making the appointment. The appellant however instituted proceedings and has continued in service by virtue of the interim orders which were passed in the writ proceedings by the learned Single Judge and thereafter, during the pendency of the Special Appeal, by the Division Bench. Even during the pendency of these proceedings, following the statement which has been made on his behalf on 10 January 2018, there was a direction on 13 August 2018 for the payment of the salary to him for the period for which he has worked. Eventually, the management proposed to post him as an in-charge Principal. Nem Singh, who was appointed in accordance with law in 1997, was allegedly prevented from joining his post. The method adopted by the appellant and the management is unsustainable in law.
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14. The appellant was appointed purely on an ad hoc basis in a leave vacancy which arose in the institution. On the death of the regularly appointed candidate, the leave vacancy ceased to exist. Once a substantive vacancy arose, it was required to be filled up in accordance with law. The appellant had no right or entitlement to claim that his appointment on an ad-hoc basis in a leave vacancy should be converted into a substantive appointment. The view which has been taken by the learned Single Judge and in appeal by the Division Bench, therefore, cannot be faulted.15. It is evident that the purported appointment of the appellant to a substantive post was without the approval of the DIOS. The DIOS had rejected the application of the management to absorb the appellant to a substantive post over 24 years ago on the ground that his appointment would be in violation of the applicable law. No procedure as required by law was followed in making the appointment. The appellant however instituted proceedings and has continued in service by virtue of the interim orders which were passed in the writ proceedings by the learned Single Judge and thereafter, during the pendency of the Special Appeal, by the Division Bench. Even during the pendency of these proceedings, following the statement which has been made on his behalf on 10 January 2018, there was a direction on 13 August 2018 for the payment of the salary to him for the period for which he has worked. Eventually, the management proposed to post him as an in-charge Principal. Nem Singh, who was appointed in accordance with law in 1997, was allegedly prevented from joining his post. The method adopted by the appellant and the management is unsustainable in law.
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PARSI ZOROASTRIAN ANJUMAN, MHOW Vs. THE SUB DIVISIONAL OFFICER/THE REGISTRAR OF PUBLIC TRUSTS & ANR | may think fit under Section 31 (1) (b) and Section 36 (1)(c). The Charity Commissioner has to be objectively satisfied that property should be disposed of in the interest of public trust; in doing so, he has right to impose such conditions as he may think fit, taking into account aforesaid triple classic requirements. It is also open to the Charity Commissioner, in exercise of power of Section 36 (2) of the, to revoke the sanction, given under clauses (a) and (b) of Section 36 of the, on the ground that the sanction had been obtained by fraud or misrepresentation or those material facts have been suppressed while obtaining sanction. The intendment of the revocation provision is also to sub-serve the interest, benefit, and protection of the Trust and its property. 24. In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer. 26. It is apparent that these decisions of the court were in the context of Section 36 of the Bombay Public Trust Act, which confers decidedly wider powers on the Commissioner (including imposition of such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust) than the kind of powers conferred on the Registrar, under Section 14 of the M.P. Public Trusts Act. Under the latter enactment, the Registrars power to grant or withhold sanction is guided by the stipulations in the trust instrument, or under a law, as directed by a court. There is, consequently, a marked difference in the nature of the powers under the two enactments. The Bombay law confers a wider supervisory role; however, such a wide power is not available to the Registrar, under the M.P Public Trusts Act. 27. Public control of charities (whether social or religious) has been recognized in our country for over a century. In the context of religious endowments, such public control is essential, for the simple reason that in its absence, there is likelihood of diversion of monies and properties accumulated through public donation and gifts. The role of the designated state official (commissioner, or registrar, etc.) is to ensure that accounts are properly maintained; monies are expended in accordance with the aims and objects of the endowments; the proper rituals are conducted, etc. Such regulation does not mean that the state is allowed to appropriate monies which rightly belong to the endowment. In the case of public charities and trusts, slightly different considerations prevail. The aim of public control is to ensure that the trust is administered efficiently and smoothly. The state interest is that far, and no more; it cannot mean that the state can dictate what decisions can or cannot be taken. In the specific context of alienation of properties, depending on the nature of the oversight, the states interest is to ensure that valuable assets of public trusts are not frittered away. It is for this reason, that provisions like Section 36 clearly enunciate a principle that the Commissioner can impose such conditions as may be appropriate. However, the statute in the present case (the M.P. Public Trusts Act) does not contain such a power to impose conditions; the only considerations that weigh with the officer (Registrar) are the stipulations in law, or in the instrument of public interest. Other than these considerations, the principle of autonomy and democratic decision-making cannot be undermined. Any organization which is self-governed, cannot be subjected to overarching state control. As long as its decisions are well informed, and grounded on relevant considerations, the interests of the trust are those defined by its members. Any measure of public control enacted through express stipulations in law, should not be expanded to such an extent that the right to freedom of association, under Article 19 (1) (c), is reduced to an empty husk, bereft of meaningful exercise of choice. 28. In the facts of the present case, the record shows that the decision to sell the properties was a consequence of a two layered process, where all members participated and decided to dispose of the property. The decision was based on a realistic assessment of the trusts existing and future liabilities, the obligations towards charity, aid to senior citizens, education, medical aid, and religious ceremonies, imposed by the trust instrument. Furthermore, the proposed spending from the returns earned through the investment made from the consideration arising from sale, were also outlined and clearly disclosed. Most crucially, the properties were valued, and proposed to be sold by public tender. Disregarding all this disclosed transparency, the Registrar, on the basis of her subjective notion of what constituted best interests of the trust, could not have rejected the application, as she did. The High Court, in this courts opinion fell into error, in endorsing that rejection. | 1[ds]If one recollects that the power to impose conditions is absent in the main provision of the parent enactment, i.e., Section 14 (1) or (2), clearly, sub-rule (3) goes beyond enacted law. A plain look at Rules 9 (1) and (2) would show that the conditions mentioned in those rules, are in conformity with the framework of Section 14. However, if Rule 9 (3) were to be read independently, it can be construed as conferring additional power to impose conditions. Such a reading would lead to Rule 9 (3) being rendered ultra vires. However, a proper and harmonious reading of Rule 9 (3) would be that the Registrar, in a given case may impose conditions, if the instrument of public trust, or any law, relating to public trusts, results in a court direction to such effect. In the absence of these objective factors, the Registrar, in this courts opinion, cannot unilaterally impose conditions which in her, or his opinion would inure to the interest of the public trust.In Chenchu Rami Reddy (supra) Section 74 (1) (c) of the Andhra Pradesh Charitable and Hindu Religious Endowments Act, 1966 obliged that public trust property had to be put to auction by the Commissioner (of trusts). In that case, the property of the trust was sought to be sold by private negotiation, despite an offer of three times more consideration, by another party. The Commissioner had approved such private sale. This court set aside the sale, holding inter alia, that:property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison detre of itself). The authorities exercising the powers under must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-andbest-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible under-hand deal or understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will not be visible to the public-eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution we close the matter.25. In Cyrus Rustom Patel (supra), again, the applicability of Section 36 of the Bombay Public Trust Act was in issue. This court set aside a sale, after observing that the Commissioner neither ascertained the value of the property, nor made any attempt to secure the best price for it. Further, the Commissioner did not attempt to explore if other conditions could be imposed on the proposed developer or purchaser. It was observed that:23. The power to grant sanction has to be exercised by the Charity Commissioner, taking into consideration three classic requirements i.e. the interest, benefit, and protection of the Trust. The expression that sanction may be accorded subject to such conditions as Charity Commissioner may think fit under Section 31 (1) (b) and Section 36 (1)(c). The Charity Commissioner has to be objectively satisfied that property should be disposed of in the interest of public trust; in doing so, he has right to impose such conditions as he may think fit, taking into account aforesaid triple classic requirements. It is also open to the Charity Commissioner, in exercise of power of Section 36 (2) of the, to revoke the sanction, given under clauses (a) and (b) of Section 36 of the, on the ground that the sanction had been obtained by fraud or misrepresentation or those material facts have been suppressed while obtaining sanction. The intendment of the revocation provision is also to sub-serve the interest, benefit, and protection of the Trust and its property.24. In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer.26. It is apparent that these decisions of the court were in the context of Section 36 of the Bombay Public Trust Act, which confers decidedly wider powers on the Commissioner (including imposition of such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust) than the kind of powers conferred on the Registrar, under Section 14 of the M.P. Public Trusts Act. Under the latter enactment, the Registrars power to grant or withhold sanction is guided by the stipulations in the trust instrument, or under a law, as directed by a court. There is, consequently, a marked difference in the nature of the powers under the two enactments. The Bombay law confers a wider supervisory role; however, such a wide power is not available to the Registrar, under the M.P Public Trusts Act.However, the statute in the present case (the M.P. Public Trusts Act) does not contain such a power to impose conditions; the only considerations that weigh with the officer (Registrar) are the stipulations in law, or in the instrument of public interest. Other than these considerations, the principle of autonomy and democratic decision-making cannot be undermined. Any organization which is self-governed, cannot be subjected to overarching state control. As long as its decisions are well informed, and grounded on relevant considerations, the interests of the trust are those defined by its members. Any measure of public control enacted through express stipulations in law, should not be expanded to such an extent that the right to freedom of association, under Article 19 (1) (c), is reduced to an empty husk, bereft of meaningful exercise of choice.28. In the facts of the present case, the record shows that the decision to sell the properties was a consequence of a two layered process, where all members participated and decided to dispose of the property. The decision was based on a realistic assessment of the trusts existing and future liabilities, the obligations towards charity, aid to senior citizens, education, medical aid, and religious ceremonies, imposed by the trust instrument. Furthermore, the proposed spending from the returns earned through the investment made from the consideration arising from sale, were also outlined and clearly disclosed. Most crucially, the properties were valued, and proposed to be sold by public tender. Disregarding all this disclosed transparency, the Registrar, on the basis of her subjective notion of what constituted best interests of the trust, could not have rejected the application, as she did. The High Court, in this courts opinion fell into error, in endorsing that rejection. | 1 | 5,970 | 1,588 | ### 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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may think fit under Section 31 (1) (b) and Section 36 (1)(c). The Charity Commissioner has to be objectively satisfied that property should be disposed of in the interest of public trust; in doing so, he has right to impose such conditions as he may think fit, taking into account aforesaid triple classic requirements. It is also open to the Charity Commissioner, in exercise of power of Section 36 (2) of the, to revoke the sanction, given under clauses (a) and (b) of Section 36 of the, on the ground that the sanction had been obtained by fraud or misrepresentation or those material facts have been suppressed while obtaining sanction. The intendment of the revocation provision is also to sub-serve the interest, benefit, and protection of the Trust and its property. 24. In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer. 26. It is apparent that these decisions of the court were in the context of Section 36 of the Bombay Public Trust Act, which confers decidedly wider powers on the Commissioner (including imposition of such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust) than the kind of powers conferred on the Registrar, under Section 14 of the M.P. Public Trusts Act. Under the latter enactment, the Registrars power to grant or withhold sanction is guided by the stipulations in the trust instrument, or under a law, as directed by a court. There is, consequently, a marked difference in the nature of the powers under the two enactments. The Bombay law confers a wider supervisory role; however, such a wide power is not available to the Registrar, under the M.P Public Trusts Act. 27. Public control of charities (whether social or religious) has been recognized in our country for over a century. In the context of religious endowments, such public control is essential, for the simple reason that in its absence, there is likelihood of diversion of monies and properties accumulated through public donation and gifts. The role of the designated state official (commissioner, or registrar, etc.) is to ensure that accounts are properly maintained; monies are expended in accordance with the aims and objects of the endowments; the proper rituals are conducted, etc. Such regulation does not mean that the state is allowed to appropriate monies which rightly belong to the endowment. In the case of public charities and trusts, slightly different considerations prevail. The aim of public control is to ensure that the trust is administered efficiently and smoothly. The state interest is that far, and no more; it cannot mean that the state can dictate what decisions can or cannot be taken. In the specific context of alienation of properties, depending on the nature of the oversight, the states interest is to ensure that valuable assets of public trusts are not frittered away. It is for this reason, that provisions like Section 36 clearly enunciate a principle that the Commissioner can impose such conditions as may be appropriate. However, the statute in the present case (the M.P. Public Trusts Act) does not contain such a power to impose conditions; the only considerations that weigh with the officer (Registrar) are the stipulations in law, or in the instrument of public interest. Other than these considerations, the principle of autonomy and democratic decision-making cannot be undermined. Any organization which is self-governed, cannot be subjected to overarching state control. As long as its decisions are well informed, and grounded on relevant considerations, the interests of the trust are those defined by its members. Any measure of public control enacted through express stipulations in law, should not be expanded to such an extent that the right to freedom of association, under Article 19 (1) (c), is reduced to an empty husk, bereft of meaningful exercise of choice. 28. In the facts of the present case, the record shows that the decision to sell the properties was a consequence of a two layered process, where all members participated and decided to dispose of the property. The decision was based on a realistic assessment of the trusts existing and future liabilities, the obligations towards charity, aid to senior citizens, education, medical aid, and religious ceremonies, imposed by the trust instrument. Furthermore, the proposed spending from the returns earned through the investment made from the consideration arising from sale, were also outlined and clearly disclosed. Most crucially, the properties were valued, and proposed to be sold by public tender. Disregarding all this disclosed transparency, the Registrar, on the basis of her subjective notion of what constituted best interests of the trust, could not have rejected the application, as she did. The High Court, in this courts opinion fell into error, in endorsing that rejection.
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cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will not be visible to the public-eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution we close the matter.25. In Cyrus Rustom Patel (supra), again, the applicability of Section 36 of the Bombay Public Trust Act was in issue. This court set aside a sale, after observing that the Commissioner neither ascertained the value of the property, nor made any attempt to secure the best price for it. Further, the Commissioner did not attempt to explore if other conditions could be imposed on the proposed developer or purchaser. It was observed that:23. The power to grant sanction has to be exercised by the Charity Commissioner, taking into consideration three classic requirements i.e. the interest, benefit, and protection of the Trust. The expression that sanction may be accorded subject to such conditions as Charity Commissioner may think fit under Section 31 (1) (b) and Section 36 (1)(c). The Charity Commissioner has to be objectively satisfied that property should be disposed of in the interest of public trust; in doing so, he has right to impose such conditions as he may think fit, taking into account aforesaid triple classic requirements. It is also open to the Charity Commissioner, in exercise of power of Section 36 (2) of the, to revoke the sanction, given under clauses (a) and (b) of Section 36 of the, on the ground that the sanction had been obtained by fraud or misrepresentation or those material facts have been suppressed while obtaining sanction. The intendment of the revocation provision is also to sub-serve the interest, benefit, and protection of the Trust and its property.24. In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer.26. It is apparent that these decisions of the court were in the context of Section 36 of the Bombay Public Trust Act, which confers decidedly wider powers on the Commissioner (including imposition of such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust) than the kind of powers conferred on the Registrar, under Section 14 of the M.P. Public Trusts Act. Under the latter enactment, the Registrars power to grant or withhold sanction is guided by the stipulations in the trust instrument, or under a law, as directed by a court. There is, consequently, a marked difference in the nature of the powers under the two enactments. The Bombay law confers a wider supervisory role; however, such a wide power is not available to the Registrar, under the M.P Public Trusts Act.However, the statute in the present case (the M.P. Public Trusts Act) does not contain such a power to impose conditions; the only considerations that weigh with the officer (Registrar) are the stipulations in law, or in the instrument of public interest. Other than these considerations, the principle of autonomy and democratic decision-making cannot be undermined. Any organization which is self-governed, cannot be subjected to overarching state control. As long as its decisions are well informed, and grounded on relevant considerations, the interests of the trust are those defined by its members. Any measure of public control enacted through express stipulations in law, should not be expanded to such an extent that the right to freedom of association, under Article 19 (1) (c), is reduced to an empty husk, bereft of meaningful exercise of choice.28. In the facts of the present case, the record shows that the decision to sell the properties was a consequence of a two layered process, where all members participated and decided to dispose of the property. The decision was based on a realistic assessment of the trusts existing and future liabilities, the obligations towards charity, aid to senior citizens, education, medical aid, and religious ceremonies, imposed by the trust instrument. Furthermore, the proposed spending from the returns earned through the investment made from the consideration arising from sale, were also outlined and clearly disclosed. Most crucially, the properties were valued, and proposed to be sold by public tender. Disregarding all this disclosed transparency, the Registrar, on the basis of her subjective notion of what constituted best interests of the trust, could not have rejected the application, as she did. The High Court, in this courts opinion fell into error, in endorsing that rejection.
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M/s. Kanungo & Co Vs. The Collector of Customs, Calcutta & Others | give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant.13. There is also no force in the second point because we do not read the impugned order as having wrongly placed the burden on the appellant. What the impugned order does is that it refers to the evidence on the record which militates against the version of the appellant and then states that the appellant had not been able to meet the inferences arising therefrom. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed appellant of the results of the enquiries and investigations.14. This also disposes of the first point, as we have said, the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant.15. Coming to the fourth point, we are of the opinion that, except for certain items there is evidence in favour of the conclusion of the High Court. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported. In Issardas Daulat Ram v. Union of India, (1962) Supp. 1 SCR 358 at p. 363 the credibility of the story about the purchase of gold from certain parties was treated as a relevant piece of evidence.16. In, however, seems to us that there is something to be said for the Appellant in respect of 54 pieces of watches which are stated to have been received by the Appellant for correction and repair. In Paras 8, 9 and 10 of the show cause notice it was stated as follows :"(8) Of the persons from whom the said 54 pcs. of watches are alleged to have been received for correction and repair, almost all of them made more or less stereotype statements on the following lines :(a) That the watch in question was imported into India by a relative who had arrived from East Pakistan.(b) That the watches were presented to him/her by a relative.(c) That the watch was new at the time of presentation but not keeping correct time.(d) That the watch was given to the M/s Kanungo & Co. for correction/repair as M/s Kanungo & Co. were known to them for a long time.(e) That he/she was not sure about the watch band as he/she had asked M/s Kanungo & Co. to change the band.(f) That the cost for correction had not been settled but had been left to M/s Kanungo & Co.(g) That he/she has no documentary evidence whatsoever in support of the watch in question having been legally imported or acquired.(9) Further some parties from whom watches were alleged to have been received for repairs under Repair Receipts produced and which watches were claimed by M/s Kanungo & Co. to have been seized on 17-10-59 have confirmed that they did never give any watches to M/s Kanungo & Co. and neither were they in possession of any repair receipts but that they have been falsely implicated.(10) For the reasons mentioned heretofore the bona fide of the correction slip and Repair Receipt Books cannot be accepted and only goes to show that M/s Kanungo & Co. have as afterthought made an attempt to satisfactorily account for 54 pieces of watches which are in fact not covered by any documentary evidence to establish legal acquisition or legal importation and there are reasons to believe prima facie that these 54 watches were illegally imported into India."In our opinion it would be impossible for a watch-repair to produce any further evidence in order to justify possession of watches. A watch-repairer cannot be expected to go into the history of the acquisition of a watch when it is given for repair. The onus being on the Customs Authorities, the type of the statements mentioned in Para 8 cannot be held to be sufficient to discharge the onus which lay on them. Further, no indication has been given in Para 9 as to how many parties had stated that they never gave any watches to the Appellant. The apparent bona fides of the correction slip and receipt book mentioned in Para 10 could not be ignored on the reasons given by the Customs Authorities. Para 10 proceeds on the basis that the onus is on the Appellant to prove that the watches had not been illegally imported.17. There is also one wrist watch mentioned on Para 18, which in our opinion has been wrongly confiscated. In Para 18 it is stated :"18. 1 piece Romer wrist watch (Item 51 of the inventory) was claimed by M/s Kanungo & Co. to have been imported from M/s Romer Watch Co., Switzerland under Factory Invoice No. 1007/PM/JN dated 8-2-55 and cleared under Bill of entry No. Cash 1857 dated 9-2-55. This 1 piece was not shown in the Stock Register of M/s Kanungo & Co. for 1958-59 where the balance shown was Nil and as such the watch seized could not possibly be the same watch as was imported by M/s. Kanungo & Co. and had been illegally imported into India."The fact that it was not shown in the stock register is not material to show that it has been illegally imported. It is not stated by the Authorities that the invoice and the bill of entry had nothing to do with this watch. | 1[ds]12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it tothem. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to beby them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant.13. There is also no force in the second point because we do not read the impugned order as having wrongly placed the burden on the appellant. What the impugned order does is that it refers to the evidence on the record which militates against the version of the appellant and then states that the appellant had not been able to meet the inferences arising therefrom. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed appellant of the results of the enquiries and investigations.14. This also disposes of the first point, as we have said, the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant.15. Coming to the fourth point, we are of the opinion that, except for certain items there is evidence in favour of the conclusion of the High Court. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported. In Issardas Daulat Ram v. Union of India, (1962) Supp. 1 SCR 358 at p. 363 the credibility of the story about the purchase of gold from certain parties was treated as a relevant piece ofour opinion it would be impossible for ato produce any further evidence in order to justify possession of watches. Acannot be expected to go into the history of the acquisition of a watch when it is given for repair. The onus being on the Customs Authorities, the type of the statements mentioned in Para 8 cannot be held to be sufficient to discharge the onus which lay on them. Further, no indication has been given in Para 9 as to how many parties had stated that they never gave any watches to the Appellant. The apparent bona fides of the correction slip and receipt book mentioned in Para 10 could not be ignored on the reasons given by the Customs Authorities. Para 10 proceeds on the basis that the onus is on the Appellant to prove that the watches had not been illegally imported.There is also one wrist watch mentioned on Para 18, which in our opinion has been wronglyfact that it was not shown in the stock register is not material to show that it has been illegally imported. It is not stated by the Authorities that the invoice and the bill of entry had nothing to do with this watch. | 1 | 2,876 | 626 | ### 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:
give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant.13. There is also no force in the second point because we do not read the impugned order as having wrongly placed the burden on the appellant. What the impugned order does is that it refers to the evidence on the record which militates against the version of the appellant and then states that the appellant had not been able to meet the inferences arising therefrom. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed appellant of the results of the enquiries and investigations.14. This also disposes of the first point, as we have said, the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant.15. Coming to the fourth point, we are of the opinion that, except for certain items there is evidence in favour of the conclusion of the High Court. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported. In Issardas Daulat Ram v. Union of India, (1962) Supp. 1 SCR 358 at p. 363 the credibility of the story about the purchase of gold from certain parties was treated as a relevant piece of evidence.16. In, however, seems to us that there is something to be said for the Appellant in respect of 54 pieces of watches which are stated to have been received by the Appellant for correction and repair. In Paras 8, 9 and 10 of the show cause notice it was stated as follows :"(8) Of the persons from whom the said 54 pcs. of watches are alleged to have been received for correction and repair, almost all of them made more or less stereotype statements on the following lines :(a) That the watch in question was imported into India by a relative who had arrived from East Pakistan.(b) That the watches were presented to him/her by a relative.(c) That the watch was new at the time of presentation but not keeping correct time.(d) That the watch was given to the M/s Kanungo & Co. for correction/repair as M/s Kanungo & Co. were known to them for a long time.(e) That he/she was not sure about the watch band as he/she had asked M/s Kanungo & Co. to change the band.(f) That the cost for correction had not been settled but had been left to M/s Kanungo & Co.(g) That he/she has no documentary evidence whatsoever in support of the watch in question having been legally imported or acquired.(9) Further some parties from whom watches were alleged to have been received for repairs under Repair Receipts produced and which watches were claimed by M/s Kanungo & Co. to have been seized on 17-10-59 have confirmed that they did never give any watches to M/s Kanungo & Co. and neither were they in possession of any repair receipts but that they have been falsely implicated.(10) For the reasons mentioned heretofore the bona fide of the correction slip and Repair Receipt Books cannot be accepted and only goes to show that M/s Kanungo & Co. have as afterthought made an attempt to satisfactorily account for 54 pieces of watches which are in fact not covered by any documentary evidence to establish legal acquisition or legal importation and there are reasons to believe prima facie that these 54 watches were illegally imported into India."In our opinion it would be impossible for a watch-repair to produce any further evidence in order to justify possession of watches. A watch-repairer cannot be expected to go into the history of the acquisition of a watch when it is given for repair. The onus being on the Customs Authorities, the type of the statements mentioned in Para 8 cannot be held to be sufficient to discharge the onus which lay on them. Further, no indication has been given in Para 9 as to how many parties had stated that they never gave any watches to the Appellant. The apparent bona fides of the correction slip and receipt book mentioned in Para 10 could not be ignored on the reasons given by the Customs Authorities. Para 10 proceeds on the basis that the onus is on the Appellant to prove that the watches had not been illegally imported.17. There is also one wrist watch mentioned on Para 18, which in our opinion has been wrongly confiscated. In Para 18 it is stated :"18. 1 piece Romer wrist watch (Item 51 of the inventory) was claimed by M/s Kanungo & Co. to have been imported from M/s Romer Watch Co., Switzerland under Factory Invoice No. 1007/PM/JN dated 8-2-55 and cleared under Bill of entry No. Cash 1857 dated 9-2-55. This 1 piece was not shown in the Stock Register of M/s Kanungo & Co. for 1958-59 where the balance shown was Nil and as such the watch seized could not possibly be the same watch as was imported by M/s. Kanungo & Co. and had been illegally imported into India."The fact that it was not shown in the stock register is not material to show that it has been illegally imported. It is not stated by the Authorities that the invoice and the bill of entry had nothing to do with this watch.
### Response:
1
### Explanation:
12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it tothem. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to beby them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant.13. There is also no force in the second point because we do not read the impugned order as having wrongly placed the burden on the appellant. What the impugned order does is that it refers to the evidence on the record which militates against the version of the appellant and then states that the appellant had not been able to meet the inferences arising therefrom. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed appellant of the results of the enquiries and investigations.14. This also disposes of the first point, as we have said, the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant.15. Coming to the fourth point, we are of the opinion that, except for certain items there is evidence in favour of the conclusion of the High Court. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported. In Issardas Daulat Ram v. Union of India, (1962) Supp. 1 SCR 358 at p. 363 the credibility of the story about the purchase of gold from certain parties was treated as a relevant piece ofour opinion it would be impossible for ato produce any further evidence in order to justify possession of watches. Acannot be expected to go into the history of the acquisition of a watch when it is given for repair. The onus being on the Customs Authorities, the type of the statements mentioned in Para 8 cannot be held to be sufficient to discharge the onus which lay on them. Further, no indication has been given in Para 9 as to how many parties had stated that they never gave any watches to the Appellant. The apparent bona fides of the correction slip and receipt book mentioned in Para 10 could not be ignored on the reasons given by the Customs Authorities. Para 10 proceeds on the basis that the onus is on the Appellant to prove that the watches had not been illegally imported.There is also one wrist watch mentioned on Para 18, which in our opinion has been wronglyfact that it was not shown in the stock register is not material to show that it has been illegally imported. It is not stated by the Authorities that the invoice and the bill of entry had nothing to do with this watch.
|
STATE OF HIMACHAL PRADESH Vs. PARKASH CHAND | is in Govt./Semi Govt. service, which fact is clear from the certificate issued by the competent authority, copy of which is annexed herewith as Annexure- P7. The ration card of the family of the petitioner clearly shows that the elder brother of the petitioner is not residing with the petitioner, copy of ration card is annexed herewith as Annexure-P8. The Pradhan concerned has also certified that the elder brother of the petitioner is residing separately for the last 17 years, which fact is clear from the certificate, copy of which is annexed herewith as Annexure-P9. The respondent, in the reliefs which were sought in the petition under Article 226 of the Constitution, sought a direction for setting aside the letter of rejection dated 25 April 2008 and for his appointment as a Peon on compassionate grounds. The Policy framed by the State Government contains the following conditions of eligibility in paragrah 5(c): In all cases where one or more members of the family are already in government service or in employment of autonomous bodies/bodies/ boards/corporations etc. of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the opinion of the department of personnel, and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers. In the batch of cases which has been disposed of by the High Court, one of the issues which were framed for decision was as follows: (ix) In case one or more dependants of a deceased- employee is/are in service, though living sepa- rately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee? The policy contains a stipulation that where one or more persons of the family are already in the employment of the State Government or of autonomous bodies, Boards, Corporations, etc. of the State or the Central Government, employment assistance should not be provided to another member of the family. However, an exception is carved out in the case of the widow of the deceased government employee, if she claims that her employed children are not supporting her. Before allowing compassionate appointment, the opinion of the Department of Personnel and Finance Department is required to be sought and the matter is left to the ultimate decision of the Council of Ministers. The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India (2005) 10 SCC 289 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present case. The High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employee who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy. It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138 , General Manager (D&PB) Vs. Kunti Tiwary (2004) 7 SCC 271 ,Punjab National Bank Vs. Ashwani Kumar Teneja (2004) 7 SCC 265 , State Bank of India Vs. Somvir Singh (2007) 4 SCC 778 , Mumtaz Yunus Mulani Vs. State of Maharashtra (2008) 11 SCC 384 ,Union of India Vs. Shashank Goswami (2012) 11 SCC 307 , State Bank of India Vs. Surya Narain Tripathi (2014) 15 SCC 739 and Canara Bank Vs. M. Mahesh Kumar ] For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policy and has issued a direction to the State to consider applications which do not fulfill the terms of the policy. This is impermissible. That apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State. | 1[ds]The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India(2005) 10 SCC 289 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present caseThe High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employeewho seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her childrenIn the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy. It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee.For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policyand has issued a direction to the State to consider applications which do not fulfill the terms of the policy. This is impermissibleThat apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State. | 1 | 1,407 | 503 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
is in Govt./Semi Govt. service, which fact is clear from the certificate issued by the competent authority, copy of which is annexed herewith as Annexure- P7. The ration card of the family of the petitioner clearly shows that the elder brother of the petitioner is not residing with the petitioner, copy of ration card is annexed herewith as Annexure-P8. The Pradhan concerned has also certified that the elder brother of the petitioner is residing separately for the last 17 years, which fact is clear from the certificate, copy of which is annexed herewith as Annexure-P9. The respondent, in the reliefs which were sought in the petition under Article 226 of the Constitution, sought a direction for setting aside the letter of rejection dated 25 April 2008 and for his appointment as a Peon on compassionate grounds. The Policy framed by the State Government contains the following conditions of eligibility in paragrah 5(c): In all cases where one or more members of the family are already in government service or in employment of autonomous bodies/bodies/ boards/corporations etc. of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the opinion of the department of personnel, and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers. In the batch of cases which has been disposed of by the High Court, one of the issues which were framed for decision was as follows: (ix) In case one or more dependants of a deceased- employee is/are in service, though living sepa- rately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee? The policy contains a stipulation that where one or more persons of the family are already in the employment of the State Government or of autonomous bodies, Boards, Corporations, etc. of the State or the Central Government, employment assistance should not be provided to another member of the family. However, an exception is carved out in the case of the widow of the deceased government employee, if she claims that her employed children are not supporting her. Before allowing compassionate appointment, the opinion of the Department of Personnel and Finance Department is required to be sought and the matter is left to the ultimate decision of the Council of Ministers. The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India (2005) 10 SCC 289 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present case. The High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employee who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy. It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138 , General Manager (D&PB) Vs. Kunti Tiwary (2004) 7 SCC 271 ,Punjab National Bank Vs. Ashwani Kumar Teneja (2004) 7 SCC 265 , State Bank of India Vs. Somvir Singh (2007) 4 SCC 778 , Mumtaz Yunus Mulani Vs. State of Maharashtra (2008) 11 SCC 384 ,Union of India Vs. Shashank Goswami (2012) 11 SCC 307 , State Bank of India Vs. Surya Narain Tripathi (2014) 15 SCC 739 and Canara Bank Vs. M. Mahesh Kumar ] For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policy and has issued a direction to the State to consider applications which do not fulfill the terms of the policy. This is impermissible. That apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State.
### Response:
1
### Explanation:
The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India(2005) 10 SCC 289 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present caseThe High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employeewho seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her childrenIn the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy. It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee.For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policyand has issued a direction to the State to consider applications which do not fulfill the terms of the policy. This is impermissibleThat apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State.
|
The Commissioner of Income Tax Vs. M/S. Hede Consultancy Company Private Limited | (supra) has observed at Paras 10 and 18 thus :10. Some of the provisions of Section 260-A are in pari materia with various sub-sections of Section 100 CPC. The provisions are Sections 260-A(1), 260-A(2)(c), 260-A(3), 260-A(4) of the Act corresponding to Sections 100(1), 100(3), 100(4) and 100(5) CPC....15. An appeal under Section 260-A can only be in respect of a substantial question of law. The expression substantial question of law has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1 this Court laid down the following tests to determine whether a substantial question of law is involved. The tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of general public importance, or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view. There is no scope for interference by the High Court with a finding recorded when such finding could be treated to be a finding of fact.7. In the Judgment in the case of Vijay Kumar Talwar vs. Commissioner of Income Tax, Delhi(supra), the Apex Court has observed at para 23 thus :23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See MadanLal v. Gopi, NarendraGopal Vidyarthi v. RajatVidyarthi, Commr. Of Customs v. Vijay Dasharath Patel, MetroarkLtd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)8. Considering that the findings of facts arrived at by the Tribunal and the CIT(A) are on the basis of material on record and there is nothing brought by the Appellants to disclose any perversity, in such findings, the question of any interference by this Court under Section 260A of the Income Tax Act, would not arise.9. We would also record the observations of the Apex Court in the Judgment reported in (2012) 6 S.C.C. 613, in the case of Vodafone International Holdings BV vs. Union of India & anr., wherein it has been observed at Paras 68, 69, 70 and 72 thus :68. The majority judgment in McDowell held that: (SCC p. 254, para 45)45. Tax planning may be legitimate provided it is within the framework of law.In the latter part of para 45, it held that: (SCC pp. 254-55)45. Colourable devices cannot be [a] part of tax planning and it is wrong to encourage the belief that it is honourable to avoid payment of tax by resorting to dubious methods.It is the obligation of every citizen to pay the taxes without resorting to subterfuges. The above observations should be read with para 46 where the majority holds: (McDowell case, SCC p. 255)46. On this aspect one of us, Chinnappa Reddy, J., has proposed a separate opinion with which we agree.The words this aspect express the majoritys agreement with the judgment of Reddy, J. only in relation to tax evasion through the use of colourable devices and by resorting to dubious methods and subterfuges. Thus, it cannot be said that all tax planning is illegal/illegitimate/impermissible. Moreover, Reddy, J. himself says that he agrees with the majority.69. In the judgment of Reddy, J. in McDowell there are repeated references to schemes and devices in contradistinction to legitimate avoidance of tax liability (paras 7-10, 17 & 18). In our view, although Chinnappa Reddy, J. makes a number of observations regarding the need to depart from Westminster and tax avoidancethese are clearly only in the context of artificial and colourable devices.70. Reading McDowell, in the manner indicated hereinabove, in cases of treaty shopping and/or tax avoidance, there is no conflict between McDowell and AzadiBachao or between McDowell and MathuramAgrawal.71. ...72. The approach of both the corporate and tax laws, particularly in the matter of corporate taxation, generally is founded on the abovementioned separate entity principle i.e. treat a company as a separate person. The Income Tax Act, 1961, in the matter of corporate taxation, is founded on the principle of the independence of companies and other entities subject to income tax. Companies and other entities are viewed as economic entities with legal independence vis--vis their shareholders/participants. It is fairly well accepted that a subsidiary and its parent are totally distinct taxpayers. Consequently, the entities subject to income tax are taxed on profits derived by them on stand-alone basis, irrespective of their actual degree of economic independence and regardless of whether profits are reserved or distributed to the shareholders/participants. Furthermore, shareholders/participants that are subject to (personal or corporate) income tax, are generally taxed on profits derived in consideration of their shareholding/ participations, such as capital gains. Nowadays, it is fairly well settled that for tax treaty purposes a subsidiary and its parent are also totally separate and distinct taxpayers.10. Taking note of the said observations of the Apex Court, we find that the Tribunal has not committed any error in coming to the conclusion that the transaction arrived at by the Respondents was legitimate within the framework of law. As such, we find considering the findings of facts arrived at by the Authorities below, that there is nothing on record to assume that the transaction was dubious and that the exercise was to avoid tax by a colourable device. The Tribunal found that the transactions were in accordance with law and have been duly implemented. Hence, we find that the substantial question of law framed by this Court is to be answered against the Appellants. | 0[ds]In the present Appeal, we find that there is no challenge by the Appellants to the findings of the Tribunal that the transactions were genuine and that the price at which the shares were sold were not inflated. In such circumstances, the contention of Shri Y. V. Nadkarni, learned Counsel appearing for the Respondents, that as the genuineness of the transactions has not been disputed by the Appellants nor have been assailed in the present Appeal, the question of contending that the transactions were colourable transactions has to be accepted. The findings of facts arrived at by the Tribunal cannot beby this Court in the present Appeal.Considering that the findings of facts arrived at by the Tribunal and the CIT(A) are on the basis of material on record and there is nothing brought by the Appellants to disclose any perversity, in such findings, the question of any interference by this Court under Section 260A of the Income Tax Act, would not arise.Taking note of the said observations of the Apex Court, we find that the Tribunal has not committed any error in coming to the conclusion that the transaction arrived at by the Respondents was legitimate within the framework of law. As such, we find considering the findings of facts arrived at by the Authorities below, that there is nothing on record to assume that the transaction was dubious and that the exercise was to avoid tax by a colourable device. The Tribunal found that the transactions were in accordance with law and have been duly implemented. Hence, we find that the substantial question of law framed by this Court is to be answered against the Appellants. | 0 | 2,740 | 303 | ### 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:
(supra) has observed at Paras 10 and 18 thus :10. Some of the provisions of Section 260-A are in pari materia with various sub-sections of Section 100 CPC. The provisions are Sections 260-A(1), 260-A(2)(c), 260-A(3), 260-A(4) of the Act corresponding to Sections 100(1), 100(3), 100(4) and 100(5) CPC....15. An appeal under Section 260-A can only be in respect of a substantial question of law. The expression substantial question of law has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1 this Court laid down the following tests to determine whether a substantial question of law is involved. The tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of general public importance, or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view. There is no scope for interference by the High Court with a finding recorded when such finding could be treated to be a finding of fact.7. In the Judgment in the case of Vijay Kumar Talwar vs. Commissioner of Income Tax, Delhi(supra), the Apex Court has observed at para 23 thus :23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See MadanLal v. Gopi, NarendraGopal Vidyarthi v. RajatVidyarthi, Commr. Of Customs v. Vijay Dasharath Patel, MetroarkLtd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)8. Considering that the findings of facts arrived at by the Tribunal and the CIT(A) are on the basis of material on record and there is nothing brought by the Appellants to disclose any perversity, in such findings, the question of any interference by this Court under Section 260A of the Income Tax Act, would not arise.9. We would also record the observations of the Apex Court in the Judgment reported in (2012) 6 S.C.C. 613, in the case of Vodafone International Holdings BV vs. Union of India & anr., wherein it has been observed at Paras 68, 69, 70 and 72 thus :68. The majority judgment in McDowell held that: (SCC p. 254, para 45)45. Tax planning may be legitimate provided it is within the framework of law.In the latter part of para 45, it held that: (SCC pp. 254-55)45. Colourable devices cannot be [a] part of tax planning and it is wrong to encourage the belief that it is honourable to avoid payment of tax by resorting to dubious methods.It is the obligation of every citizen to pay the taxes without resorting to subterfuges. The above observations should be read with para 46 where the majority holds: (McDowell case, SCC p. 255)46. On this aspect one of us, Chinnappa Reddy, J., has proposed a separate opinion with which we agree.The words this aspect express the majoritys agreement with the judgment of Reddy, J. only in relation to tax evasion through the use of colourable devices and by resorting to dubious methods and subterfuges. Thus, it cannot be said that all tax planning is illegal/illegitimate/impermissible. Moreover, Reddy, J. himself says that he agrees with the majority.69. In the judgment of Reddy, J. in McDowell there are repeated references to schemes and devices in contradistinction to legitimate avoidance of tax liability (paras 7-10, 17 & 18). In our view, although Chinnappa Reddy, J. makes a number of observations regarding the need to depart from Westminster and tax avoidancethese are clearly only in the context of artificial and colourable devices.70. Reading McDowell, in the manner indicated hereinabove, in cases of treaty shopping and/or tax avoidance, there is no conflict between McDowell and AzadiBachao or between McDowell and MathuramAgrawal.71. ...72. The approach of both the corporate and tax laws, particularly in the matter of corporate taxation, generally is founded on the abovementioned separate entity principle i.e. treat a company as a separate person. The Income Tax Act, 1961, in the matter of corporate taxation, is founded on the principle of the independence of companies and other entities subject to income tax. Companies and other entities are viewed as economic entities with legal independence vis--vis their shareholders/participants. It is fairly well accepted that a subsidiary and its parent are totally distinct taxpayers. Consequently, the entities subject to income tax are taxed on profits derived by them on stand-alone basis, irrespective of their actual degree of economic independence and regardless of whether profits are reserved or distributed to the shareholders/participants. Furthermore, shareholders/participants that are subject to (personal or corporate) income tax, are generally taxed on profits derived in consideration of their shareholding/ participations, such as capital gains. Nowadays, it is fairly well settled that for tax treaty purposes a subsidiary and its parent are also totally separate and distinct taxpayers.10. Taking note of the said observations of the Apex Court, we find that the Tribunal has not committed any error in coming to the conclusion that the transaction arrived at by the Respondents was legitimate within the framework of law. As such, we find considering the findings of facts arrived at by the Authorities below, that there is nothing on record to assume that the transaction was dubious and that the exercise was to avoid tax by a colourable device. The Tribunal found that the transactions were in accordance with law and have been duly implemented. Hence, we find that the substantial question of law framed by this Court is to be answered against the Appellants.
### Response:
0
### Explanation:
In the present Appeal, we find that there is no challenge by the Appellants to the findings of the Tribunal that the transactions were genuine and that the price at which the shares were sold were not inflated. In such circumstances, the contention of Shri Y. V. Nadkarni, learned Counsel appearing for the Respondents, that as the genuineness of the transactions has not been disputed by the Appellants nor have been assailed in the present Appeal, the question of contending that the transactions were colourable transactions has to be accepted. The findings of facts arrived at by the Tribunal cannot beby this Court in the present Appeal.Considering that the findings of facts arrived at by the Tribunal and the CIT(A) are on the basis of material on record and there is nothing brought by the Appellants to disclose any perversity, in such findings, the question of any interference by this Court under Section 260A of the Income Tax Act, would not arise.Taking note of the said observations of the Apex Court, we find that the Tribunal has not committed any error in coming to the conclusion that the transaction arrived at by the Respondents was legitimate within the framework of law. As such, we find considering the findings of facts arrived at by the Authorities below, that there is nothing on record to assume that the transaction was dubious and that the exercise was to avoid tax by a colourable device. The Tribunal found that the transactions were in accordance with law and have been duly implemented. Hence, we find that the substantial question of law framed by this Court is to be answered against the Appellants.
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V. Ganesan Vs. Canara Bank & Others | 1. The respondent No.2 in this appeal is the borrower whose persistent failure to pay the agreed amounts led to the sale of the mortgaged property which was purchased by the appellant in an auction held on 13th December, 2005. 2. On 10th January, 2006, the second respondent filed an application for setting aside the aforesaid sale which was rejected by the Recovery Officer on 20th January, 2006. On the same day, i.e. 20th January, 2006, the sale in favour of the appellant was confirmed and sale certificate was issued. On the next date i.e. 21st January, 2006, a sale deed was executed in favour of the appellant and the title deeds were handed over to the said appellant. Thereafter on 3rd February, 2006 the respondent No.2 filed another application under Section 27(2) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 seeking leave to deposit the amount at which the property was purchased by the appellant. The said application was once again dismissed. 3. Thereafter, it appears that the second respondent preferred Transfer Petition No.61 of 2006 before the Debts Recovery Appellate Tribunal, Chennai (hereinafter referred to as "the DRAT, Chennai") for transfer of proceedings from Debts Recovery Tribunal, Coimbatore ("DRT, Coimbatore" for short) where it was pending to Debts Recovery Tribunal, Chennai ("DRT, Chennai" for short) on the ground that the DRT, Coimbatore was not in a position to hear the case due to the absence of a Presiding Officer. During the pendency of the aforesaid Transfer Petition, the second respondent on 19th June, 2006 filed an I.A. under Rule 22 of the DRAT (Procedure) Rules, 1994 seeking the same relief i.e. setting aside of the sale. The aforesaid relief was sought, ostensibly, to secure the ends of justice as according to the said respondent the property in question was the only piece of property left with him. Though the aforesaid prayer was opposed by the appellant, the DRAT, Chennai by order dated 19th October, 2006 allowed the said application and set aside the sale made in favour of the appellant on certain conditions. Aggrieved, the appellant moved the High Court of Madras by way of a writ petition which was dismissed by the impugned order dated 29th March, 2007. Hence the present appeal. 4. A reading of the order of the DRAT, Chennai as well as the order of the High court would go to show that what had prompted the said authorities to hold in favour of the respondent No.2 was the fact that the property in question was the sole item of property owned by the said respondent and furthermore as the appellant had received the amount paid by him in the auction sale from the respondent No.2. 5. Having considered the matter we are of the view that the said grounds cannot constitute a sufficient basis for setting aside a confirmed sale in favour of the appellant which has also crystallised into execution of a sale deed in his favour. Even the jurisdiction of the DRAT to pass the impugned order in purported exercise of powers under Rule 22 of the DRAT (Procedure) Rules, 1994 would remain in serious doubt as the DRAT was only in seisin of the issue of transfer of the proceedings from the DRT at Coimbatore to the DRT at Chennai and not the merits of the dispute. The receipt of the money paid by the respondent No.2 to the appellant under the orders of the DRAT cannot also be a sufficient ground for granting relief to the respondent No.2 as apparently from the order of the DRAT, Chennai itself, it appears that the said amount was received by the appellant under protest and without prejudice to his rights. The sale in favour of the appellant having been refused to be set aside by the Recovery Officer on two occasions we do not think that the impugned order passed by the DRAT, Chennai while in seisin of a transfer petition would be justified in law. 6. Learned counsel for the respondent No.2 has relied on two decisions of this Court in Taherakhatoon (D) by Lrs. v. Salambin Mohammad (1999) 2 SCC 635 and Sukumar De v. Bimala Auddy & Ors. (2014) 1 SCC 584 to submit that on the ratio of the aforesaid decisions this Court should decline relief to the appellant in view of the peculiar facts of the case, namely, that the property in question is the sole property left with the respondent No.2 and that the amount paid by the said respondent No.2 to the appellant continues to remain with the appellant. 7. We do not consider that in the facts of the case when the sale has been confirmed and the same has been refused to be set aside by the Recovery Officer the exercise of jurisdiction under Article 136 of the Constitution of India should be, in any way, inhibited or restrained on the grounds urged. | 1[ds]4. A reading of the order of the DRAT, Chennai as well as the order of the High court would go to show that what had prompted the said authorities to hold in favour of the respondent No.2 was the fact that the property in question was the sole item of property owned by the said respondent and furthermore as the appellant had received the amount paid by him in the auction sale from the respondent No.2.Having considered the matter we are of the view that the said grounds cannot constitute a sufficient basis for setting aside a confirmed sale in favour of the appellant which has also crystallised into execution of a sale deed in his favour. Even the jurisdiction of the DRAT to pass the impugned order in purported exercise of powers under Rule 22 of the DRAT (Procedure) Rules, 1994 would remain in serious doubt as the DRAT was only in seisin of the issue of transfer of the proceedings from the DRT at Coimbatore to the DRT at Chennai and not the merits of the dispute. The receipt of the money paid by the respondent No.2 to the appellant under the orders of the DRAT cannot also be a sufficient ground for granting relief to the respondent No.2 as apparently from the order of the DRAT, Chennai itself, it appears that the said amount was received by the appellant under protest and without prejudice to his rights. The sale in favour of the appellant having been refused to be set aside by the Recovery Officer on two occasions we do not think that the impugned order passed by the DRAT, Chennai while in seisin of a transfer petition would be justified in law.We do not consider that in the facts of the case when the sale has been confirmed and the same has been refused to be set aside by the Recovery Officer the exercise of jurisdiction under Article 136 of the Constitution of India should be, in any way, inhibited or restrained on the grounds | 1 | 922 | 359 | ### 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:
1. The respondent No.2 in this appeal is the borrower whose persistent failure to pay the agreed amounts led to the sale of the mortgaged property which was purchased by the appellant in an auction held on 13th December, 2005. 2. On 10th January, 2006, the second respondent filed an application for setting aside the aforesaid sale which was rejected by the Recovery Officer on 20th January, 2006. On the same day, i.e. 20th January, 2006, the sale in favour of the appellant was confirmed and sale certificate was issued. On the next date i.e. 21st January, 2006, a sale deed was executed in favour of the appellant and the title deeds were handed over to the said appellant. Thereafter on 3rd February, 2006 the respondent No.2 filed another application under Section 27(2) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 seeking leave to deposit the amount at which the property was purchased by the appellant. The said application was once again dismissed. 3. Thereafter, it appears that the second respondent preferred Transfer Petition No.61 of 2006 before the Debts Recovery Appellate Tribunal, Chennai (hereinafter referred to as "the DRAT, Chennai") for transfer of proceedings from Debts Recovery Tribunal, Coimbatore ("DRT, Coimbatore" for short) where it was pending to Debts Recovery Tribunal, Chennai ("DRT, Chennai" for short) on the ground that the DRT, Coimbatore was not in a position to hear the case due to the absence of a Presiding Officer. During the pendency of the aforesaid Transfer Petition, the second respondent on 19th June, 2006 filed an I.A. under Rule 22 of the DRAT (Procedure) Rules, 1994 seeking the same relief i.e. setting aside of the sale. The aforesaid relief was sought, ostensibly, to secure the ends of justice as according to the said respondent the property in question was the only piece of property left with him. Though the aforesaid prayer was opposed by the appellant, the DRAT, Chennai by order dated 19th October, 2006 allowed the said application and set aside the sale made in favour of the appellant on certain conditions. Aggrieved, the appellant moved the High Court of Madras by way of a writ petition which was dismissed by the impugned order dated 29th March, 2007. Hence the present appeal. 4. A reading of the order of the DRAT, Chennai as well as the order of the High court would go to show that what had prompted the said authorities to hold in favour of the respondent No.2 was the fact that the property in question was the sole item of property owned by the said respondent and furthermore as the appellant had received the amount paid by him in the auction sale from the respondent No.2. 5. Having considered the matter we are of the view that the said grounds cannot constitute a sufficient basis for setting aside a confirmed sale in favour of the appellant which has also crystallised into execution of a sale deed in his favour. Even the jurisdiction of the DRAT to pass the impugned order in purported exercise of powers under Rule 22 of the DRAT (Procedure) Rules, 1994 would remain in serious doubt as the DRAT was only in seisin of the issue of transfer of the proceedings from the DRT at Coimbatore to the DRT at Chennai and not the merits of the dispute. The receipt of the money paid by the respondent No.2 to the appellant under the orders of the DRAT cannot also be a sufficient ground for granting relief to the respondent No.2 as apparently from the order of the DRAT, Chennai itself, it appears that the said amount was received by the appellant under protest and without prejudice to his rights. The sale in favour of the appellant having been refused to be set aside by the Recovery Officer on two occasions we do not think that the impugned order passed by the DRAT, Chennai while in seisin of a transfer petition would be justified in law. 6. Learned counsel for the respondent No.2 has relied on two decisions of this Court in Taherakhatoon (D) by Lrs. v. Salambin Mohammad (1999) 2 SCC 635 and Sukumar De v. Bimala Auddy & Ors. (2014) 1 SCC 584 to submit that on the ratio of the aforesaid decisions this Court should decline relief to the appellant in view of the peculiar facts of the case, namely, that the property in question is the sole property left with the respondent No.2 and that the amount paid by the said respondent No.2 to the appellant continues to remain with the appellant. 7. We do not consider that in the facts of the case when the sale has been confirmed and the same has been refused to be set aside by the Recovery Officer the exercise of jurisdiction under Article 136 of the Constitution of India should be, in any way, inhibited or restrained on the grounds urged.
### Response:
1
### Explanation:
4. A reading of the order of the DRAT, Chennai as well as the order of the High court would go to show that what had prompted the said authorities to hold in favour of the respondent No.2 was the fact that the property in question was the sole item of property owned by the said respondent and furthermore as the appellant had received the amount paid by him in the auction sale from the respondent No.2.Having considered the matter we are of the view that the said grounds cannot constitute a sufficient basis for setting aside a confirmed sale in favour of the appellant which has also crystallised into execution of a sale deed in his favour. Even the jurisdiction of the DRAT to pass the impugned order in purported exercise of powers under Rule 22 of the DRAT (Procedure) Rules, 1994 would remain in serious doubt as the DRAT was only in seisin of the issue of transfer of the proceedings from the DRT at Coimbatore to the DRT at Chennai and not the merits of the dispute. The receipt of the money paid by the respondent No.2 to the appellant under the orders of the DRAT cannot also be a sufficient ground for granting relief to the respondent No.2 as apparently from the order of the DRAT, Chennai itself, it appears that the said amount was received by the appellant under protest and without prejudice to his rights. The sale in favour of the appellant having been refused to be set aside by the Recovery Officer on two occasions we do not think that the impugned order passed by the DRAT, Chennai while in seisin of a transfer petition would be justified in law.We do not consider that in the facts of the case when the sale has been confirmed and the same has been refused to be set aside by the Recovery Officer the exercise of jurisdiction under Article 136 of the Constitution of India should be, in any way, inhibited or restrained on the grounds
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Executive Engineer, Irrigation Division, Puri Vs. Gangaram Chhapolia | the meaning of the expressions "Public Works" and "Public Works Department". Paragraphs 21 and 22 are extracted below:21. "Public Works" means several works, public health, engineering works, irrigation, navigation, embankment and drainage works and electricity works22. "Public Works Department" means the Department of the State Government in administrative charge of Public Works8. There was really no illegality on the part of the Chief Engineer in appointing D. Sahu, Superintending Engineer, Irrigation to be the arbitrator since he belongs to the Public Works Department. There was an is no such department called Works Department in the State of Orissa. The term "State Public Works Department" used in Clause 23 is not apparently non-existent because it is now split into several departments of the Government, one of which is the Department of Irrigation. Further, the words "unconnected with the work" appearing in Clause 23 did not imply that the Chief Engineer could not appoint D. Sahu, Superintending Engineer, Irrigation to be the arbitrator or that he was not competent to adjudicate upon the dispute between the parties as he was not he was admittedly not connected with the works in question viz. Excavation of Satankha Distributory with its minor and sub-minor from O. M. to Tail. The words "unconnected with the work" in Clause 23 do not relate to the department concerned dealing with a works contract in question viz. the Department of Irrigation as here, but to the particular works contract in relation to which the dispute has arisen between the parties9. The general rule that grammatical and ordinary sense of the contract is to be adhered to unless such adherence would lead to such manifest absurdity or such repugnance or inconsistency, applies also to building and construction contracts. The meaning and intention of the parties has to be gathered from the language used. The use of the expression "Superintending Engineer, State Public Works Department" in Clause 23 qualified by the restrictive words "unconnected with the work" clearly manifests an intention of the parties that all questions and disputes arising out of a work contract shall be referred to the sole arbitration of a Superintending Engineer of the concerned department. From the very nature of things, a dispute arising out of a works contract relating to the Department of Irrigation as he is an expert on the subject and it cannot obviously be referred to a Superintending engineer, Building and Roads. The only limitation on the power of the Chief Engineer under Clause 23 was that he had to appoint a "Superintending Engineer unconnected with the work" i.e. unconnected with the works contract in relation to which the dispute has arisen. The learned Subordinate Judge was obviously wrong in assuming that since D. Sahu, Superintending Engineer, Irrigation was subordinate to the Chief Engineer, he was not competent to act as an arbitrator or since he was a Superintending Engineer, Irrigation, he could not adjudicate upon the dispute between the parties. The impugned order passed by the learned Subordinate Judge is accordingly set aside10. We must next advert to the change in the law. During pendency of the appeal, the State Legislature of Orissa enacted the Arbitration (Orissa Amendment) Act, 1982 which was reserved for the assent of the President of India and received such assent on March 21, 1983. By Section 3 of the Amendment Act, a new Section 41-A is inserted which reads41-A. Constitution of any reference to the Arbitration Tribunal. -(1) Notwithstanding anything contained in this Act or in any provisions contained in Section 47, in all case where the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party to the dispute, all references to arbitration shall be made to the Arbitration Tribunal(2) The State Government shall constitute an Arbitration Tribunal constitute an Arbitration Tribunal consisting of the following members, namely(a) one member chosen from among the officers belonging to the Orissa Superior Judicial Service (Senior Branch);(b) one member chosen from among the officers of the Public Works Department of the State Government not below the rank of a Superintending Engineer;(c) one member chosen from among the officers belonging to the Orissa Finance Service not below the Superior Administrative Cadre in Class I(3) The member chosen from the Superior Judicial Service (Senior Branch) shall be the Chairman of the Tribunal(4) The terms and conditions of appointment of the members of the Tribunal and the headquarters thereof shall be as may be determined by the State Government from time to time(5) The business of the Arbitration Tribunal shall be conducted in such manner as the Tribunal may determine(6) The Arbitration Tribunal constituted by the State Government under the Arbitration Tribunal Rules, 1979 with its members holding office immediately prior to the commencement of the Arbitration (Orissa Amendment) Act, 1982 shall be deemed to be the Arbitration Tribunal constituted under this Act and shall continue to hold office till the Tribunal is re-constituted by the State Government(7) All arbitration proceedings relating to a dispute of the nature specified in sub-section (1) which are pending before any arbitrator on the date of commencement of the Arbitration (Orissa Amendment) Act, 1982 and in which no award has been made by the said date, shall stand transferred to and disposed of by Arbitration Tribunal11. By reason of the non obstante clause contained in sub-section (1) of Section 41-A of the Act, all references to arbitration in which the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party have to be made to the statutory Arbitration Tribunal constituted under sub-section (2) thereof. Sub-section (7) of Section 41-A provides that all arbitration proceedings relating to a dispute of the nature specified in sub-section (1), on or before the date of commencement of the Act in which is the date of publication of the Act in the Official Gazette, shall stand transferred to and disposed of by the said Arbitration Tribunal | 1[ds]It is seen that as per the above clause, the Chief Engineer is under a legal obligation to appoint an S. E. of Works Department unconnected with the work in question and if such S. E. is not available he himself should enter into such reference. There is no denial that Sri. D. Sahu is an S. E. of Irrigation Department who is direct subordinate to the Chief Engineer, Irrigation and so the appointment of Sri. D. Sahu who is the S. E. of the Irrigation is in violation of the terms of the Agreement as per Clause 23 and so in the eye of law, it is not a valid appointment. An appointment of an arbitrator which is invalid one is no appointment. It therefore follows that the Chief Engineer has not made a valid appointment in term of Clause 23 of the deed of agreement within 15 days and so his right to appointment as arbitrator to adjudicate the dispute between the parties is extinguished. Therefore, the reference made by the Chief Engineer to Sri D. Sahu, the S. E. of Irrigation Department is void7. There can be no doubt whatever that the order passed by the learned Subordinate Judge was based on a construction of Clause 23 which was patently erroneous. The learned Subordinate Judge failed to appreciate that the expression "State Public Works Department" in Clause 23 of the Agreement was a wider connotation and he wrongly assumed that D. Sahu, Superintending Engineer, Irrigation did not belong to the State Public Works Department. The Public Works Department has different wings like Irrigation and Power, Public Health and Works Departmentthe very nature of things, a dispute arising out of a works contract relating to the Department of Irrigation as he is an expert on the subject and it cannot obviously be referred to a Superintending engineer, Building and Roads. The only limitation on the power of the Chief Engineer under Clause 23 was that he had to appoint a "Superintending Engineer unconnected with the work" i.e. unconnected with the works contract in relation to which the dispute has arisen. The learned Subordinate Judge was obviously wrong in assuming that since D. Sahu, Superintending Engineer, Irrigation was subordinate to the Chief Engineer, he was not competent to act as an arbitrator or since he was a Superintending Engineer, Irrigation, he could not adjudicate upon the dispute between the parties. The impugned order passed by the learned Subordinate Judge is accordingly setBy reason of the non obstante clause contained in(1) of Sectionof the Act, all references to arbitration in which the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party have to be made to the statutory Arbitration Tribunal constituted underion (7) of Sectionprovides that all arbitration proceedings relating to a dispute of the nature specified in(1), on or before the date of commencement of the Act in which is the date of publication of the Act in the Official Gazette, shall stand transferred to and disposed of by the said Arbitration Tribunal | 1 | 2,427 | 567 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the meaning of the expressions "Public Works" and "Public Works Department". Paragraphs 21 and 22 are extracted below:21. "Public Works" means several works, public health, engineering works, irrigation, navigation, embankment and drainage works and electricity works22. "Public Works Department" means the Department of the State Government in administrative charge of Public Works8. There was really no illegality on the part of the Chief Engineer in appointing D. Sahu, Superintending Engineer, Irrigation to be the arbitrator since he belongs to the Public Works Department. There was an is no such department called Works Department in the State of Orissa. The term "State Public Works Department" used in Clause 23 is not apparently non-existent because it is now split into several departments of the Government, one of which is the Department of Irrigation. Further, the words "unconnected with the work" appearing in Clause 23 did not imply that the Chief Engineer could not appoint D. Sahu, Superintending Engineer, Irrigation to be the arbitrator or that he was not competent to adjudicate upon the dispute between the parties as he was not he was admittedly not connected with the works in question viz. Excavation of Satankha Distributory with its minor and sub-minor from O. M. to Tail. The words "unconnected with the work" in Clause 23 do not relate to the department concerned dealing with a works contract in question viz. the Department of Irrigation as here, but to the particular works contract in relation to which the dispute has arisen between the parties9. The general rule that grammatical and ordinary sense of the contract is to be adhered to unless such adherence would lead to such manifest absurdity or such repugnance or inconsistency, applies also to building and construction contracts. The meaning and intention of the parties has to be gathered from the language used. The use of the expression "Superintending Engineer, State Public Works Department" in Clause 23 qualified by the restrictive words "unconnected with the work" clearly manifests an intention of the parties that all questions and disputes arising out of a work contract shall be referred to the sole arbitration of a Superintending Engineer of the concerned department. From the very nature of things, a dispute arising out of a works contract relating to the Department of Irrigation as he is an expert on the subject and it cannot obviously be referred to a Superintending engineer, Building and Roads. The only limitation on the power of the Chief Engineer under Clause 23 was that he had to appoint a "Superintending Engineer unconnected with the work" i.e. unconnected with the works contract in relation to which the dispute has arisen. The learned Subordinate Judge was obviously wrong in assuming that since D. Sahu, Superintending Engineer, Irrigation was subordinate to the Chief Engineer, he was not competent to act as an arbitrator or since he was a Superintending Engineer, Irrigation, he could not adjudicate upon the dispute between the parties. The impugned order passed by the learned Subordinate Judge is accordingly set aside10. We must next advert to the change in the law. During pendency of the appeal, the State Legislature of Orissa enacted the Arbitration (Orissa Amendment) Act, 1982 which was reserved for the assent of the President of India and received such assent on March 21, 1983. By Section 3 of the Amendment Act, a new Section 41-A is inserted which reads41-A. Constitution of any reference to the Arbitration Tribunal. -(1) Notwithstanding anything contained in this Act or in any provisions contained in Section 47, in all case where the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party to the dispute, all references to arbitration shall be made to the Arbitration Tribunal(2) The State Government shall constitute an Arbitration Tribunal constitute an Arbitration Tribunal consisting of the following members, namely(a) one member chosen from among the officers belonging to the Orissa Superior Judicial Service (Senior Branch);(b) one member chosen from among the officers of the Public Works Department of the State Government not below the rank of a Superintending Engineer;(c) one member chosen from among the officers belonging to the Orissa Finance Service not below the Superior Administrative Cadre in Class I(3) The member chosen from the Superior Judicial Service (Senior Branch) shall be the Chairman of the Tribunal(4) The terms and conditions of appointment of the members of the Tribunal and the headquarters thereof shall be as may be determined by the State Government from time to time(5) The business of the Arbitration Tribunal shall be conducted in such manner as the Tribunal may determine(6) The Arbitration Tribunal constituted by the State Government under the Arbitration Tribunal Rules, 1979 with its members holding office immediately prior to the commencement of the Arbitration (Orissa Amendment) Act, 1982 shall be deemed to be the Arbitration Tribunal constituted under this Act and shall continue to hold office till the Tribunal is re-constituted by the State Government(7) All arbitration proceedings relating to a dispute of the nature specified in sub-section (1) which are pending before any arbitrator on the date of commencement of the Arbitration (Orissa Amendment) Act, 1982 and in which no award has been made by the said date, shall stand transferred to and disposed of by Arbitration Tribunal11. By reason of the non obstante clause contained in sub-section (1) of Section 41-A of the Act, all references to arbitration in which the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party have to be made to the statutory Arbitration Tribunal constituted under sub-section (2) thereof. Sub-section (7) of Section 41-A provides that all arbitration proceedings relating to a dispute of the nature specified in sub-section (1), on or before the date of commencement of the Act in which is the date of publication of the Act in the Official Gazette, shall stand transferred to and disposed of by the said Arbitration Tribunal
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1
### Explanation:
It is seen that as per the above clause, the Chief Engineer is under a legal obligation to appoint an S. E. of Works Department unconnected with the work in question and if such S. E. is not available he himself should enter into such reference. There is no denial that Sri. D. Sahu is an S. E. of Irrigation Department who is direct subordinate to the Chief Engineer, Irrigation and so the appointment of Sri. D. Sahu who is the S. E. of the Irrigation is in violation of the terms of the Agreement as per Clause 23 and so in the eye of law, it is not a valid appointment. An appointment of an arbitrator which is invalid one is no appointment. It therefore follows that the Chief Engineer has not made a valid appointment in term of Clause 23 of the deed of agreement within 15 days and so his right to appointment as arbitrator to adjudicate the dispute between the parties is extinguished. Therefore, the reference made by the Chief Engineer to Sri D. Sahu, the S. E. of Irrigation Department is void7. There can be no doubt whatever that the order passed by the learned Subordinate Judge was based on a construction of Clause 23 which was patently erroneous. The learned Subordinate Judge failed to appreciate that the expression "State Public Works Department" in Clause 23 of the Agreement was a wider connotation and he wrongly assumed that D. Sahu, Superintending Engineer, Irrigation did not belong to the State Public Works Department. The Public Works Department has different wings like Irrigation and Power, Public Health and Works Departmentthe very nature of things, a dispute arising out of a works contract relating to the Department of Irrigation as he is an expert on the subject and it cannot obviously be referred to a Superintending engineer, Building and Roads. The only limitation on the power of the Chief Engineer under Clause 23 was that he had to appoint a "Superintending Engineer unconnected with the work" i.e. unconnected with the works contract in relation to which the dispute has arisen. The learned Subordinate Judge was obviously wrong in assuming that since D. Sahu, Superintending Engineer, Irrigation was subordinate to the Chief Engineer, he was not competent to act as an arbitrator or since he was a Superintending Engineer, Irrigation, he could not adjudicate upon the dispute between the parties. The impugned order passed by the learned Subordinate Judge is accordingly setBy reason of the non obstante clause contained in(1) of Sectionof the Act, all references to arbitration in which the State Government, a local or other authority controlled by the State Government, a statutory corporation or a Government company is a party have to be made to the statutory Arbitration Tribunal constituted underion (7) of Sectionprovides that all arbitration proceedings relating to a dispute of the nature specified in(1), on or before the date of commencement of the Act in which is the date of publication of the Act in the Official Gazette, shall stand transferred to and disposed of by the said Arbitration Tribunal
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Yograj Infrastructure Ltd Vs. S Ssangyong Engineering & Construction Co. Ltd | ALTAMAS KABIR, J. 1. Interlocutory Application No.3 of 2011 has been filed by SSANGYONG Engineering & Construction Company Limited in disposed of Civil Appeal No.7562 of 2011, seeking clarification and correction of certain clerical errors in the judgment passed by this Court on 1st September, 2011, under Order XIII Rule 3 of the Supreme Court Rules, 1966. 2. Mr. Dharmendra Rautray, learned Advocate-on-Record, who had earlier appeared for SSANGYONG Engineering & Construction Company Limited, submitted that in paragraph 5 of the aforesaid judgment it had been mentioned that his clients had filed an application before the Sole Arbitrator on 5th June, 2010, for interim relief under Section 17 of the Arbitration and Conciliation Act, 1996. Mr. Rautray pointed out that the said application had been made not under Section 17 of the above Act, but under Rule 24 of the SIAC Rules and the same would be evident from the application made before the sole Arbitrator in SIAC Arbitration No.37 of 2010, by the Respondent, being Annexure-B to the present application.3. Mr. Rautray then submitted that through inadvertence, in paragraph 35 of the judgment, it has been indicated that there was no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings and that the same had been subsequently clarified in paragraph 37, wherein while indicating that the arbitration proceedings would be governed by the SIAC Rules as the Curial law, which included Rule 32, which made it clear that where the seat of arbitration is Singapore, the law of the arbitration under the SIAC Rules would be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore). Mr. Rautray submitted that it was a clear case of inadvertence in paragraph 35 that needs to be clarified by indicating that the Curial law is the International Arbitration law of Singapore and not the SIAC rules. 4. It was also pointed out that in paragraph 36 of the judgment in the sentence beginning with the words "In Bhatia International (supra)...", it had been indicated that while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards. Mr. Rautray submitted that as would be evident from reading the judgment as a whole, this Court had intended to indicate that where the seat of arbitration was "outside" and not "in" India, the said portion of the sentence should read "where the seat of arbitration was outside India". 5. It was lastly submitted by Mr. Rautray that in paragraph 4 of the judgment it had been mentioned that an application had been filed by the Appellant under Section 9 of the 1996 Act before the District and Sessions Judge, Narsinghpur, Madhya Pradesh, whereas such an application had been made by the Respondent.6. Mr. Rautray submitted that the aforesaid clarification and corrections are required to be made in the final judgment. 7. However, on behalf of Yograj Infrastructure Limited it was urged that except for the clarification sought for with regard to the Rules applicable to the arbitral proceedings, the other clarifications could be made. 8. Having regard to the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration.9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order. 10. | 1[ds]Having regard to the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration.9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order. | 1 | 782 | 180 | ### 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:
ALTAMAS KABIR, J. 1. Interlocutory Application No.3 of 2011 has been filed by SSANGYONG Engineering & Construction Company Limited in disposed of Civil Appeal No.7562 of 2011, seeking clarification and correction of certain clerical errors in the judgment passed by this Court on 1st September, 2011, under Order XIII Rule 3 of the Supreme Court Rules, 1966. 2. Mr. Dharmendra Rautray, learned Advocate-on-Record, who had earlier appeared for SSANGYONG Engineering & Construction Company Limited, submitted that in paragraph 5 of the aforesaid judgment it had been mentioned that his clients had filed an application before the Sole Arbitrator on 5th June, 2010, for interim relief under Section 17 of the Arbitration and Conciliation Act, 1996. Mr. Rautray pointed out that the said application had been made not under Section 17 of the above Act, but under Rule 24 of the SIAC Rules and the same would be evident from the application made before the sole Arbitrator in SIAC Arbitration No.37 of 2010, by the Respondent, being Annexure-B to the present application.3. Mr. Rautray then submitted that through inadvertence, in paragraph 35 of the judgment, it has been indicated that there was no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings and that the same had been subsequently clarified in paragraph 37, wherein while indicating that the arbitration proceedings would be governed by the SIAC Rules as the Curial law, which included Rule 32, which made it clear that where the seat of arbitration is Singapore, the law of the arbitration under the SIAC Rules would be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore). Mr. Rautray submitted that it was a clear case of inadvertence in paragraph 35 that needs to be clarified by indicating that the Curial law is the International Arbitration law of Singapore and not the SIAC rules. 4. It was also pointed out that in paragraph 36 of the judgment in the sentence beginning with the words "In Bhatia International (supra)...", it had been indicated that while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards. Mr. Rautray submitted that as would be evident from reading the judgment as a whole, this Court had intended to indicate that where the seat of arbitration was "outside" and not "in" India, the said portion of the sentence should read "where the seat of arbitration was outside India". 5. It was lastly submitted by Mr. Rautray that in paragraph 4 of the judgment it had been mentioned that an application had been filed by the Appellant under Section 9 of the 1996 Act before the District and Sessions Judge, Narsinghpur, Madhya Pradesh, whereas such an application had been made by the Respondent.6. Mr. Rautray submitted that the aforesaid clarification and corrections are required to be made in the final judgment. 7. However, on behalf of Yograj Infrastructure Limited it was urged that except for the clarification sought for with regard to the Rules applicable to the arbitral proceedings, the other clarifications could be made. 8. Having regard to the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration.9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order. 10.
### Response:
1
### Explanation:
Having regard to the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration.9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order.
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Union Of India Vs. M/S. Dharamendra Textile Processors &Ors | necessary. (See CST v. Popular Trading Co. (2000) 5 SCC 511 ) The legislative casus omissus cannot be supplied by judicial interpretative process. 18. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. in Artemiou v. Procopiou (1965) 3 ALL ER 539 (All ER p. 544 I) "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC (1963) AC 557 where at AC p. 577 he also observed: (All ER p.664 I) "This is not a new problem, though our standard of drafting is such. 19. It is then true that: "When the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But", on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom". (See Fenton v. Hampton (1858) 11 MOO PC 347). 20. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod enim semel aut bis existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones v. Smart 1785 (1) TR 44:99 ER 963 (ER p. 967) "can in no case be supplied by a court of law, for that would be to make laws". The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ). 21. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further." (See Grey v. Pearson.) 22. The latter part of this "golden rule" must, however, be applied with much caution. "If", remarked Jervis, C.J., "the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely, because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning". (See Abley v. Dale, ER p.525) 23. The above position was highlighted in Sangeeta Singh v. Union of India and Ors. (2005 (7) SCC 484 ). 24. It is of significance to note that the conceptual and contextual difference between Section 271(1) (c) and Section 276C of the IT Act was lost sight of in Dilip Shroffs case (supra).25. The Explanations appended to Section 272(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. The judgment in Dilp N. Shroofs case (supra) has not considered the effect and relevance of Section 276C of the I.T. Act. Object behind enactment of Section 271 (1)(e) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C of the I.T. Act.26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered. | 1[ds]12. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable. Most of cases relied upon by learned counsel for the assessee had their foundation on Bharat Heavy Electricals case (supra). As noted above, the same is based on concession and in any event did not indicate the correct position in law.13. It is a well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements.While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. in Artemiou v. Procopiou (1965) 3 ALL ER 539 (All ER p. 544 I) "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction.It is of significance to note that the conceptual and contextual difference between Section 271(1) (c) and Section 276C of the IT Act was lost sight of in Dilip Shroffs case (supra).25. The Explanations appended to Section 272(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. The judgment in Dilp N. Shroofs case (supra) has not considered the effect and relevance of Section 276C of the I.T. Act. Object behind enactment of Section 271 (1)(e) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C of the I.T. Act.26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered. | 1 | 11,143 | 825 | ### 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:
necessary. (See CST v. Popular Trading Co. (2000) 5 SCC 511 ) The legislative casus omissus cannot be supplied by judicial interpretative process. 18. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. in Artemiou v. Procopiou (1965) 3 ALL ER 539 (All ER p. 544 I) "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC (1963) AC 557 where at AC p. 577 he also observed: (All ER p.664 I) "This is not a new problem, though our standard of drafting is such. 19. It is then true that: "When the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But", on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom". (See Fenton v. Hampton (1858) 11 MOO PC 347). 20. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod enim semel aut bis existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones v. Smart 1785 (1) TR 44:99 ER 963 (ER p. 967) "can in no case be supplied by a court of law, for that would be to make laws". The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ). 21. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further." (See Grey v. Pearson.) 22. The latter part of this "golden rule" must, however, be applied with much caution. "If", remarked Jervis, C.J., "the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely, because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning". (See Abley v. Dale, ER p.525) 23. The above position was highlighted in Sangeeta Singh v. Union of India and Ors. (2005 (7) SCC 484 ). 24. It is of significance to note that the conceptual and contextual difference between Section 271(1) (c) and Section 276C of the IT Act was lost sight of in Dilip Shroffs case (supra).25. The Explanations appended to Section 272(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. The judgment in Dilp N. Shroofs case (supra) has not considered the effect and relevance of Section 276C of the I.T. Act. Object behind enactment of Section 271 (1)(e) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C of the I.T. Act.26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered.
### Response:
1
### Explanation:
12. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable. Most of cases relied upon by learned counsel for the assessee had their foundation on Bharat Heavy Electricals case (supra). As noted above, the same is based on concession and in any event did not indicate the correct position in law.13. It is a well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements.While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. in Artemiou v. Procopiou (1965) 3 ALL ER 539 (All ER p. 544 I) "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction.It is of significance to note that the conceptual and contextual difference between Section 271(1) (c) and Section 276C of the IT Act was lost sight of in Dilip Shroffs case (supra).25. The Explanations appended to Section 272(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. The judgment in Dilp N. Shroofs case (supra) has not considered the effect and relevance of Section 276C of the I.T. Act. Object behind enactment of Section 271 (1)(e) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276C of the I.T. Act.26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered.
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Abdulrasakh Vs. K.P. Mohammed & Others | respect of issue Nos.1 to 7. The preliminary issues are reproduced as under:"1. Whether the election petition is barred by limitation?2. Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act?3. Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act?4. Is there power in this Court to permit representation delay to be condoned when the original delay in presenting election petition itself is not permissible to be condoned and when there is no provision for any delay condonation?5. Whether the defects cured and corrections made in the election petition after the period of limitation will relate back to the date of its presentation?6. Whether defects cured and corrections made in the election petition after presentation are permissible and in compliance with the mandatory requirements as provided in Sections 81 & 83 of the Representation of People Act and Rules framed thereunder?7. Whether the election petition is maintainable for noncompliance of mandatory requirements as provided in Sections 81, 82, 83 & 117 of the Representation of People Act and Rules framed thereunder and other requirements of law?"13. The learned single Judge then on examination of the record opined that the Registry, after presentation of the petition on 1.7.2016 had not returned the petition to the first two respondents but was posted before the Bench as per the correct practice, which passed the order dealing with the objections. On curing of the minor defects, notice was issued to the appellant.14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.Conclusion:15. We have examined the submissions of the learned counsel for the parties and do not find any merit in the appeal. The minor corrections permitted to be made vide order dated 18.7.2016 are by the Court. A mountain out of a molehill has been made without appreciating the office notings in the true perspective. The Registry was fully conscious that the eight defects pointed out by it could not be permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the concerned Judge as an unnumbered election petition. On 18.7.2016, the learned Judge did not find merit in some of the objections pointed by the Registry and to the extent some minor corrections were required, which were not material, one weeks time was granted to respondent Nos.1 & 2 to carry out the corrections. The needful was done within the stipulated time and it is thereafter that notices were issued to the appellant.16. The whole premise of the plea of the appellant is based on the Registry permitting corrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81(1) of the said Act. There was, in fact, really no occasion in these facts for the Court to examine the Registry officer as was done in the case of Sahodrabai Rai 17. The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation of non-supply of the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey. The observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section.19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected. | 0[ds]14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation ofof the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar PandeyThe observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section.19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected. | 0 | 3,639 | 530 | ### 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:
respect of issue Nos.1 to 7. The preliminary issues are reproduced as under:"1. Whether the election petition is barred by limitation?2. Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act?3. Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act?4. Is there power in this Court to permit representation delay to be condoned when the original delay in presenting election petition itself is not permissible to be condoned and when there is no provision for any delay condonation?5. Whether the defects cured and corrections made in the election petition after the period of limitation will relate back to the date of its presentation?6. Whether defects cured and corrections made in the election petition after presentation are permissible and in compliance with the mandatory requirements as provided in Sections 81 & 83 of the Representation of People Act and Rules framed thereunder?7. Whether the election petition is maintainable for noncompliance of mandatory requirements as provided in Sections 81, 82, 83 & 117 of the Representation of People Act and Rules framed thereunder and other requirements of law?"13. The learned single Judge then on examination of the record opined that the Registry, after presentation of the petition on 1.7.2016 had not returned the petition to the first two respondents but was posted before the Bench as per the correct practice, which passed the order dealing with the objections. On curing of the minor defects, notice was issued to the appellant.14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.Conclusion:15. We have examined the submissions of the learned counsel for the parties and do not find any merit in the appeal. The minor corrections permitted to be made vide order dated 18.7.2016 are by the Court. A mountain out of a molehill has been made without appreciating the office notings in the true perspective. The Registry was fully conscious that the eight defects pointed out by it could not be permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the concerned Judge as an unnumbered election petition. On 18.7.2016, the learned Judge did not find merit in some of the objections pointed by the Registry and to the extent some minor corrections were required, which were not material, one weeks time was granted to respondent Nos.1 & 2 to carry out the corrections. The needful was done within the stipulated time and it is thereafter that notices were issued to the appellant.16. The whole premise of the plea of the appellant is based on the Registry permitting corrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81(1) of the said Act. There was, in fact, really no occasion in these facts for the Court to examine the Registry officer as was done in the case of Sahodrabai Rai 17. The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation of non-supply of the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey. The observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section.19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected.
### Response:
0
### Explanation:
14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation ofof the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar PandeyThe observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section.19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected.
|
Nirmala Bala Ghose And Another Vs. Balai Chand Ghose And Ors | deities Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu and Nirmala and Balai sough to represent the two deities. On an objection raised to the constitution of the action by Nirmala Sunil Sekhar Bhattacharjee was appointed guardian of the two deities for the action. Bhattacharjee filed a written statement denying the claim made by Balai and submitted that the dedication in favour of the deity was absolute. An issue was raised about the nature of the endowment and the Trial Court declared that the endowment was partial and the beneficial interest remained vested in Balai. The Trial Court had rejected the case of the deities that there was an absolute dedication, and the guardian for the suit did not challenge that decree on behalf of the two deities. Nirmala appealed and contended that there was an absolute dedication in favour of the deity, but she did not represent the deities and could not arise that claim, unless she got herself formally appointed guardian of the deity by order of the Court. The High Court confirmed the decree passed by the Trial Court, subject to certain modification which are not material. 22. In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself the Court has power and is indeed bound under O. 41 R. 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Under 41 B. 33, insofar as it is material, provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filled any appeal or objection:" . The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from: 23. The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct, Against the deities it was claimed that the property was partially dedicated in their favour.; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Q. 41 R.: 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rs.33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O.41 R.33 of the Code of Civil Procedure can be exercised in this case in favour of the deities. | 1[ds]22. In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself the Court has power and is indeed bound under O. 41 R. 33Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Under 41 B. 33, insofar as it is material, provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filled any appeal or objection:"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from:23. The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct, Against the deities it was claimed that the property was partially dedicated in their favour.; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Q. 41 R.: 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rs.33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O.41 R.33 of theCode of Civil Procedure can be exercised in this case in favour of the deities10. We do not propose to express any opinion on the validity or otherwise of the directions; under which provision for amumulation of income is made or benefit is given to persons other than the Shebaits are concerned. This enquiry is only directed to the questionwhether on the assumption that the directions arevalid,they indicate an intention on the part of the settlor to create merely a charge on the estate endowed, reserving the beneficial interest in the settlor or her heirs14. Whether the provision for accumulation income of the endowment isvalid,does not call for determination in this case. If there is an absolute dedication, but the direction for accumulation is, thebenefit of the income will enure for the benefit of the deity without restriction: the income will not revert to the settlor. | 1 | 8,862 | 1,020 | ### 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:
deities Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu and Nirmala and Balai sough to represent the two deities. On an objection raised to the constitution of the action by Nirmala Sunil Sekhar Bhattacharjee was appointed guardian of the two deities for the action. Bhattacharjee filed a written statement denying the claim made by Balai and submitted that the dedication in favour of the deity was absolute. An issue was raised about the nature of the endowment and the Trial Court declared that the endowment was partial and the beneficial interest remained vested in Balai. The Trial Court had rejected the case of the deities that there was an absolute dedication, and the guardian for the suit did not challenge that decree on behalf of the two deities. Nirmala appealed and contended that there was an absolute dedication in favour of the deity, but she did not represent the deities and could not arise that claim, unless she got herself formally appointed guardian of the deity by order of the Court. The High Court confirmed the decree passed by the Trial Court, subject to certain modification which are not material. 22. In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself the Court has power and is indeed bound under O. 41 R. 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Under 41 B. 33, insofar as it is material, provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filled any appeal or objection:" . The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from: 23. The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct, Against the deities it was claimed that the property was partially dedicated in their favour.; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Q. 41 R.: 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rs.33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O.41 R.33 of the Code of Civil Procedure can be exercised in this case in favour of the deities.
### Response:
1
### Explanation:
22. In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself the Court has power and is indeed bound under O. 41 R. 33Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Under 41 B. 33, insofar as it is material, provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filled any appeal or objection:"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from:23. The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct, Against the deities it was claimed that the property was partially dedicated in their favour.; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Q. 41 R.: 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rs.33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O.41 R.33 of theCode of Civil Procedure can be exercised in this case in favour of the deities10. We do not propose to express any opinion on the validity or otherwise of the directions; under which provision for amumulation of income is made or benefit is given to persons other than the Shebaits are concerned. This enquiry is only directed to the questionwhether on the assumption that the directions arevalid,they indicate an intention on the part of the settlor to create merely a charge on the estate endowed, reserving the beneficial interest in the settlor or her heirs14. Whether the provision for accumulation income of the endowment isvalid,does not call for determination in this case. If there is an absolute dedication, but the direction for accumulation is, thebenefit of the income will enure for the benefit of the deity without restriction: the income will not revert to the settlor.
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Commercial Tax Officer, Rajasthan Vs. M/s. Binani Cements Ltd. & Another | to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former special Act unless it appears that the special Act again received consideration from Parliament.” 53. In Life Insurance Corporation v. D.J. Bahadur Krishna Iyer, J. has pointed out :“In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purpose it may be special and we cannot blur distinctions when dealing with finer points of law.”” 40. In U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16 , this Court has concluded that if Section 79(c) of the Electricity Supply Act generally provides for the making of regulations providing for the conditions of service of the employees of the Board, it can only be regarded as a general provision which must yield to the special provisions of the Industrial Employment (Standing Orders) Act in respect of matters covered by the latter Act, and observed that: “9. The reason for the rule that a general provision should yield to a specific provision is this: In passing a special Act, Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former Special Act unless it appears that the Special Act again received consideration from Parliament. Vide London and Blackwall Railway v. Limehouse District Board of Works, and Thorpe v. Adams." 41. In Gobind Sugar Mills Ltd. v. State of Bihar, (1999) 7 SCC 76 this Court has observed that while determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. With this basic principle in mind, the provisions must be examined to find out whether it is possible to construe harmoniously the two provisions. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord a special treatment vis-à-vis the general entries and a further endeavour will have to be made to find out whether the specific provision excludes the applicability of the general ones. Once we come to the conclusion that intention of the legislation is to exclude the general provision then the rule “general provision should yield to special provision” is squarely attracted. 42. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject.43. In the instant case, the item 1E is subject specific provision introduced by an amendment in 1996 to the Scheme. The said amendment removed “new cement industries” from the non-eligible Annexure- B and placed it into Annexure-C amongst the eligible industries. It classified the cement units for eligibility of tax exemption into three categories: small, medium and large. The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of Rs.60/- lakhs and Rs.5/- crores, respectively and large to be over the FCI of Rs.5/- crores. The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption.44. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision.45. The proposition put forth by the respondent- Company that the construction which is most beneficial to the assessee must be applied and adopted fails to impress upon us its application in this case. Howsoever, it is true that the canons of construction must be applied to extract most beneficial re-conciliation of provisions. In case of fiscal statute dealing with exemption, it would require interpretation benefiting the assessee. But here the introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI. The specific entries being mutually exclusive have been placed so systematically arranged and classified in the Scheme. The construction of provisions must not be divorced from the object of introduction of subject specific provision while retaining other generalized provision that now specifically exclude the new cement industries, which could otherwise fall into its ambit, lest such interpretation would be not ab absurdo (i.e., interpretation avoiding absurd results).46. Therefore, in our considered view the respondent-Company would only be eligible for grant of exemption under Item 1E as a large new cement unit in accordance with its FCI being above Rs.5/- crores. In light of the aforesaid, we are of the considered opinion that the judgment and order passed by the High Court ought to be set aside and the appeals of the Revenue requires to be allowed. | 1[ds]29. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on samecould be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject.43. In the instant case, the item 1E is subject specific provision introduced by an amendment in 1996 to the Scheme. The said amendment removedfrom the non-eligible Annexure- B and placed it into Annexure-C amongst the eligible industries. It classified the cement units for eligibility of tax exemption into three categories: small, medium and large. The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of Rs.60/- lakhs and Rs.5/- crores, respectively and large to be over the FCI of Rs.5/- crores. The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption.44. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision.45. The proposition put forth by the respondent- Company that the construction which is most beneficial to the assessee must be applied and adopted fails to impress upon us its application in this case. Howsoever, it is true that the canons of construction must be applied to extract most beneficial re-conciliation of provisions. In case of fiscal statute dealing with exemption, it would require interpretation benefiting the assessee. But here the introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI. The specific entries being mutually exclusive have been placed so systematically arranged and classified in the Scheme. The construction of provisions must not be divorced from the object of introduction of subject specific provision while retaining other generalized provision that now specifically exclude the new cement industries, which could otherwise fall into its ambit, lest such interpretation would be not ab absurdo (i.e., interpretation avoiding absurd results).46. Therefore, in our considered view the respondent-Company would only be eligible for grant of exemption under Item 1E as a large new cement unit in accordance with its FCI being above Rs.5/- crores. In light of the aforesaid, we are of the considered opinion that the judgment and order passed by the High Court ought to be set aside and the appeals of the Revenue requires to be allowed. | 1 | 7,887 | 694 | ### Instruction:
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to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former special Act unless it appears that the special Act again received consideration from Parliament.” 53. In Life Insurance Corporation v. D.J. Bahadur Krishna Iyer, J. has pointed out :“In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purpose it may be special and we cannot blur distinctions when dealing with finer points of law.”” 40. In U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16 , this Court has concluded that if Section 79(c) of the Electricity Supply Act generally provides for the making of regulations providing for the conditions of service of the employees of the Board, it can only be regarded as a general provision which must yield to the special provisions of the Industrial Employment (Standing Orders) Act in respect of matters covered by the latter Act, and observed that: “9. The reason for the rule that a general provision should yield to a specific provision is this: In passing a special Act, Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former Special Act unless it appears that the Special Act again received consideration from Parliament. Vide London and Blackwall Railway v. Limehouse District Board of Works, and Thorpe v. Adams." 41. In Gobind Sugar Mills Ltd. v. State of Bihar, (1999) 7 SCC 76 this Court has observed that while determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. With this basic principle in mind, the provisions must be examined to find out whether it is possible to construe harmoniously the two provisions. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord a special treatment vis-à-vis the general entries and a further endeavour will have to be made to find out whether the specific provision excludes the applicability of the general ones. Once we come to the conclusion that intention of the legislation is to exclude the general provision then the rule “general provision should yield to special provision” is squarely attracted. 42. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject.43. In the instant case, the item 1E is subject specific provision introduced by an amendment in 1996 to the Scheme. The said amendment removed “new cement industries” from the non-eligible Annexure- B and placed it into Annexure-C amongst the eligible industries. It classified the cement units for eligibility of tax exemption into three categories: small, medium and large. The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of Rs.60/- lakhs and Rs.5/- crores, respectively and large to be over the FCI of Rs.5/- crores. The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption.44. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision.45. The proposition put forth by the respondent- Company that the construction which is most beneficial to the assessee must be applied and adopted fails to impress upon us its application in this case. Howsoever, it is true that the canons of construction must be applied to extract most beneficial re-conciliation of provisions. In case of fiscal statute dealing with exemption, it would require interpretation benefiting the assessee. But here the introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI. The specific entries being mutually exclusive have been placed so systematically arranged and classified in the Scheme. The construction of provisions must not be divorced from the object of introduction of subject specific provision while retaining other generalized provision that now specifically exclude the new cement industries, which could otherwise fall into its ambit, lest such interpretation would be not ab absurdo (i.e., interpretation avoiding absurd results).46. Therefore, in our considered view the respondent-Company would only be eligible for grant of exemption under Item 1E as a large new cement unit in accordance with its FCI being above Rs.5/- crores. In light of the aforesaid, we are of the considered opinion that the judgment and order passed by the High Court ought to be set aside and the appeals of the Revenue requires to be allowed.
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### Explanation:
29. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on samecould be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject.43. In the instant case, the item 1E is subject specific provision introduced by an amendment in 1996 to the Scheme. The said amendment removedfrom the non-eligible Annexure- B and placed it into Annexure-C amongst the eligible industries. It classified the cement units for eligibility of tax exemption into three categories: small, medium and large. The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of Rs.60/- lakhs and Rs.5/- crores, respectively and large to be over the FCI of Rs.5/- crores. The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption.44. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision.45. The proposition put forth by the respondent- Company that the construction which is most beneficial to the assessee must be applied and adopted fails to impress upon us its application in this case. Howsoever, it is true that the canons of construction must be applied to extract most beneficial re-conciliation of provisions. In case of fiscal statute dealing with exemption, it would require interpretation benefiting the assessee. But here the introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI. The specific entries being mutually exclusive have been placed so systematically arranged and classified in the Scheme. The construction of provisions must not be divorced from the object of introduction of subject specific provision while retaining other generalized provision that now specifically exclude the new cement industries, which could otherwise fall into its ambit, lest such interpretation would be not ab absurdo (i.e., interpretation avoiding absurd results).46. Therefore, in our considered view the respondent-Company would only be eligible for grant of exemption under Item 1E as a large new cement unit in accordance with its FCI being above Rs.5/- crores. In light of the aforesaid, we are of the considered opinion that the judgment and order passed by the High Court ought to be set aside and the appeals of the Revenue requires to be allowed.
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Mohd. Shafi Vs. Additional District and Sessions Judge (VII), Allahabad and Others | is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it. Bearing in mind this principle of interpretation, we may now approach the language of Explanation (iv) and try to arrive at its proper construction. 7. The word building is used thrice in Explanation (iv) and it is clear from the context in which it occurs that it is not intended to be used in its popular sense so as to mean the entire super-structure raised on the ground. The first time that the word building is used is in the expression the building under tenancy and it is obvious that it is the building under tenancy which is intended to be referred when the word building is used towards the end of the Explanation. It is in respect of the building under tenancy that a conclusive presumption is raised that it is bona fide required by the landlord. Now the building under tenancy cannot be the entire super-structure because what is contemplated by the Explanation is that the building under tenancy must be a part of a building and, therefore, it cannot be the whole super-structure. Here, the word building obviously means accommodation which is the subject-matter of tenancy. The question thus is : what is the sense in which the word building is used when it occurs for the second time in the Explanation. The context clearly indicates that the word building is there used to denote a unit, of which the accommodation under tenancy constitutes a part and the remaining part is in the occupation of the landlord for residential purposes. The accommodation under tenancy and the accommodation in the occupation of the landlord together go to make up the building. The use of the word part is a clear pointer that the building, of which the accommodation under tenancy and the accommodation in the occupation of the landlord are parts, must be a unit. Where a superstructure consists of two or more tenements and each tenement is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit. It is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord, that the Explanation would be attracted. To determine the applicability of the Explanation, the question to be asked would be, whether the accommodation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation ? The object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where a super-structure consists of two independent and separate units of accommodation, one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord. Such a provision would be plainly contrary to the aim and objective of the legislation. On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accommodation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accommodation under tenancy. We may point out that Mr. Justice Hari Swarup has also taken the same view in a well-considered judgment in Chunnoo Lal v. Additional District Judge, Allahabad ([1975] 1 ALR 362 (All HC)) and that decision has our approval. 8. Since the question as to the applicability of Explanation (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light of the interpretation placed by us on the Explanation. It was contended before us on behalf of the appellant that since Explanation (iv) has been omitted by U.P. Act No. 28 of 1976, respondent 3 was no longer entitled to take advantage of it and her claim for possession must fail. But the answer given by respondent 3 to this contention was that the omission of Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had a vested right to obtain release of the rented premises in her favour by virtue of Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act 28 of 1976. | 1[ds]5. Now, it may be pointed out straightway that if Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 is applicable in the present case, the question of comparing the relative hardship of the appellant and respondent 3 would not arise and respondent 3 would straightway be entitled to an order of eviction as soon as she shows that the conditions specified in the Explanation are satisfied.language of the proviso is clear and explicit and it requires the Prescribed Authority to take into account the relative hardship of the landlord and the tenant only in those cases which are not covered by the Explanation. If a case falls within the Explanation, the proviso would have no application and it would not be necessary to consider the comparative hardship of the landlord and the tenant in deciding whether or not to make an order of eviction.High Court seemed to take the view that the finding of the Prescribed Authority that Explanation (iv) was applicable in the present case was a finding of fact and since this finding of fact was affirmed by the District Court in appeal, it was not competent to the High Court to interfere with it in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution and that was presumably the reason why the High Court accepted the hypothesis that the case was covered by Explanation (iv). But this view of the High Court is plainly erroneous because the question whether Explanation (iv) is attracted in the present case would depend on the applicability to the facts, of the correct interpretation of the Explanation and it would, therefore, clearly be a mixed question of law and fact, and if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation, the High Court could certainly correct the error and set aside the conclusion reached by the District Court.6. It is apparent even on a cursory reading of Explanation (iv) that the language employed by the Legislature in expressing its intent is extremely clumsy. This is a glaring example of how the Legislature can by inapt and ill-considered drafting create uncertainty and promote litigation. It appears that sometimes the legislature forgets that laws are intended for human beings and they should be so framed that an ordinary man can understand their true import and meaning. The language in which the legislation is couched must be simple and plain so that even a man in the Clapam bus, or if we may indigenise this expression a man in the DTC bus should be able to follow its mandate and injunction without the possibility of doubt or error. Here, unfortunately the language of Explanation (iv) is such that we have to grope our way in a chaos of verbal darkness and try to arrive at the correct legislative meaning with great diffidence and hesitation. But there is one principle of interpretation which offers some guidance in the interpretation of the rather obscure language of this Explanation and it is that since the Explanation raises a conclusive presumption in favour of the landlord in a legislation which is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it. Bearing in mind this principle of interpretation, we may now approach the language of Explanation (iv) and try to arrive at its proper construction.object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where a super-structure consists of two independent and separate units of accommodation, one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord. Such a provision would be plainly contrary to the aim and objective of the legislation. On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accommodation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accommodation under tenancy. We may point out that Mr. Justice Hari Swarup has also taken the same view in a well-considered judgment in Chunnoo Lal v. Additional District Judge, Allahabad ([1975] 1 ALR 362 (All HC)) and that decision has our approval8. Since the question as to the applicability of Explanation (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light of the interpretation placed by us on the Explanation. | 1 | 3,165 | 1,083 | ### Instruction:
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is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it. Bearing in mind this principle of interpretation, we may now approach the language of Explanation (iv) and try to arrive at its proper construction. 7. The word building is used thrice in Explanation (iv) and it is clear from the context in which it occurs that it is not intended to be used in its popular sense so as to mean the entire super-structure raised on the ground. The first time that the word building is used is in the expression the building under tenancy and it is obvious that it is the building under tenancy which is intended to be referred when the word building is used towards the end of the Explanation. It is in respect of the building under tenancy that a conclusive presumption is raised that it is bona fide required by the landlord. Now the building under tenancy cannot be the entire super-structure because what is contemplated by the Explanation is that the building under tenancy must be a part of a building and, therefore, it cannot be the whole super-structure. Here, the word building obviously means accommodation which is the subject-matter of tenancy. The question thus is : what is the sense in which the word building is used when it occurs for the second time in the Explanation. The context clearly indicates that the word building is there used to denote a unit, of which the accommodation under tenancy constitutes a part and the remaining part is in the occupation of the landlord for residential purposes. The accommodation under tenancy and the accommodation in the occupation of the landlord together go to make up the building. The use of the word part is a clear pointer that the building, of which the accommodation under tenancy and the accommodation in the occupation of the landlord are parts, must be a unit. Where a superstructure consists of two or more tenements and each tenement is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit. It is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord, that the Explanation would be attracted. To determine the applicability of the Explanation, the question to be asked would be, whether the accommodation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation ? The object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where a super-structure consists of two independent and separate units of accommodation, one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord. Such a provision would be plainly contrary to the aim and objective of the legislation. On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accommodation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accommodation under tenancy. We may point out that Mr. Justice Hari Swarup has also taken the same view in a well-considered judgment in Chunnoo Lal v. Additional District Judge, Allahabad ([1975] 1 ALR 362 (All HC)) and that decision has our approval. 8. Since the question as to the applicability of Explanation (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light of the interpretation placed by us on the Explanation. It was contended before us on behalf of the appellant that since Explanation (iv) has been omitted by U.P. Act No. 28 of 1976, respondent 3 was no longer entitled to take advantage of it and her claim for possession must fail. But the answer given by respondent 3 to this contention was that the omission of Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had a vested right to obtain release of the rented premises in her favour by virtue of Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act 28 of 1976.
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straightway that if Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 is applicable in the present case, the question of comparing the relative hardship of the appellant and respondent 3 would not arise and respondent 3 would straightway be entitled to an order of eviction as soon as she shows that the conditions specified in the Explanation are satisfied.language of the proviso is clear and explicit and it requires the Prescribed Authority to take into account the relative hardship of the landlord and the tenant only in those cases which are not covered by the Explanation. If a case falls within the Explanation, the proviso would have no application and it would not be necessary to consider the comparative hardship of the landlord and the tenant in deciding whether or not to make an order of eviction.High Court seemed to take the view that the finding of the Prescribed Authority that Explanation (iv) was applicable in the present case was a finding of fact and since this finding of fact was affirmed by the District Court in appeal, it was not competent to the High Court to interfere with it in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution and that was presumably the reason why the High Court accepted the hypothesis that the case was covered by Explanation (iv). But this view of the High Court is plainly erroneous because the question whether Explanation (iv) is attracted in the present case would depend on the applicability to the facts, of the correct interpretation of the Explanation and it would, therefore, clearly be a mixed question of law and fact, and if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation, the High Court could certainly correct the error and set aside the conclusion reached by the District Court.6. It is apparent even on a cursory reading of Explanation (iv) that the language employed by the Legislature in expressing its intent is extremely clumsy. This is a glaring example of how the Legislature can by inapt and ill-considered drafting create uncertainty and promote litigation. It appears that sometimes the legislature forgets that laws are intended for human beings and they should be so framed that an ordinary man can understand their true import and meaning. The language in which the legislation is couched must be simple and plain so that even a man in the Clapam bus, or if we may indigenise this expression a man in the DTC bus should be able to follow its mandate and injunction without the possibility of doubt or error. Here, unfortunately the language of Explanation (iv) is such that we have to grope our way in a chaos of verbal darkness and try to arrive at the correct legislative meaning with great diffidence and hesitation. But there is one principle of interpretation which offers some guidance in the interpretation of the rather obscure language of this Explanation and it is that since the Explanation raises a conclusive presumption in favour of the landlord in a legislation which is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it. Bearing in mind this principle of interpretation, we may now approach the language of Explanation (iv) and try to arrive at its proper construction.object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where a super-structure consists of two independent and separate units of accommodation, one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord. Such a provision would be plainly contrary to the aim and objective of the legislation. On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accommodation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accommodation under tenancy. We may point out that Mr. Justice Hari Swarup has also taken the same view in a well-considered judgment in Chunnoo Lal v. Additional District Judge, Allahabad ([1975] 1 ALR 362 (All HC)) and that decision has our approval8. Since the question as to the applicability of Explanation (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light of the interpretation placed by us on the Explanation.
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Union of India (UOI) and Ors Vs. Ravindra V. Desai | as NULL and which could not materialise are still maintained because the company was to earn revenue. 23. We, thus, do not agree with the submission of the learned Counsel for the Respondent that there were discrepancies in the CDR produced by Vodafone before the AFT. In fact, the witness from Vodafone was able to clear all the doubts which were expressed by the Respondent. 24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad. v. State of Himachal Pradesh (2018) 2 SCC 801 is of no avail to the Respondent as it is not applicable to the facts and circumstances of the present case. 25. At the end, insofar as appeal of the Respondent is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferred Under Sections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited as can be seen from the language of these provisions: 30. Appeal to Supreme Court.--(1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed Under Section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this Sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal Under Sub-section (2), the Supreme Court may order that-- (a) the execution of the punishment or the order appealed against be suspended; or (b) if the Appellant is in confinement, he be released on bail: Provided that where an Appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under Clause (a) or Clause (b), as the case may be. 31. Leave to appeal.--(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time. 26. A combined reading of the aforesaid provisions clearly brings out that appeal to this Court has to be on a point of law on general public importance. 27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all. 28. Resultantly, we do not find any merit in the appeal preferred by the Officer. 29. We now advert to the appeal preferred by the Union of India. As pointed out above, the limited scope of this appeal is to be on the quantum of sentence given by the AFT. After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal. 30. The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference. | 0[ds]Apart from the aforesaid contradictory versions given by thet himself, one particular piece of evidence produced by thes clinches the issue. It is noticed by the AFT that as per report dated July 04, 2011 (Ex. P-29) lodged by the wife of thet on July 04, 2011, the sim card was lost sometime between 6 pm on June 20, 2011 to June 25, 2011. However, even after June 20, 2011, calls were made from this mobile number to Cdr. Arjun Kumar (PW-33) and Cdr. Arjun Kumar deposed that he has received these calls from the. This aspect is discussed by the AFT in the following manner:If we go by this report lodged by the wife of the accused, it appears that the said SIM card was lost in transit sometimes from 6.00 p.m. of 20th to 25th June, 2011. Now, according to the accused, from 19th June, 2011, the SIM card of his wife was replaced by the new card and sometimes between the evening of 20th June, 2011 till 25th June, 2011, the old SIM card of 9564784782 was lost. If it is so, this number could not have been used for making any call at least from 21st June, 2011 onwards. On perusal of the CDR, Exhibit T-2, it appears that on 20th June, 2011 at 13.29 hours, a call was made from this mobile number to mobile No. 9619796549, which was the mobile number of Cdr. Arjun Kumar. The record also shows that on 20th June, 2011 itself at 18.31 hours, again, there was a call from the said mobile to the above referred mobile number of Cdr. Arjun Kumar. There was also call from the said mobile of theto the mobile of Cdr. Arjun Kumar on 23rd June, 2011 at 11.46 hours. On 25th June, 2011 at 09.50 hours and 15.06 hours, again, there were two calls from the said mobile No. 9564784782 to mobile No. 9619796549 of Cdr. Arjun Kumar. Again, there were three calls from the said mobile number to the mobile of Cdr. Arjun Kumar on 28th June, 2011 between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar has deposed on oath that he had received these calls and that thewas in contact with him on all these days from his mobile. It shows that the said mobile was being used by theeven after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from theDr. Sharma had made extensive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible13. Another interesting evidence which have surfaced and which nails thet on this aspect is that as per thet himself, he had proceeded to Kochi on June 29, 2011 to join the duty on INS Viraat. For this purpose, he had left Mumbai on June 29, 2011 by Air India AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at 7:20 pm on June 29, 2011. One of the calls was made from this phone at 05:01 pm from Mumbai area. Thereafter, another call was made from this very phone on the same day at 08:01 pm from Kerala area. At 05:01 pm, when the call was made from Mumbai, thet was in Mumbai and his flight left Mumbai at 05:30 pm. He had reached Kochi at 07:20 pm and another call is made at 08:01 pm. This also shows that the Cell Phone with the aforesaid number was with the15. Coming to the second ingredient, in order to prove that sexually explicit calls were received by the wives of the three officers, the prosecution produced these ladies as PW-9, PW-12 and PW-18. They have explained in detail having received these calls and the offending language. To show that the calls were received from the aforesaid phone which belongs to the, the prosecution had produced Call Data Record (CDR) of NOFRA land line numbers. Cdr. Anurag Saxena, Officer-in-Charge of NOFRA who appeared as PW-3 probe the said CDRs of NOFRA Telephone Exchange showing that all the calls had originated from Mobile No. 9564784782. He also produced Exh. P-10, which is the certificate issued by him to the effect that the land line numbers of the three female victims were provided by the NOFRA Telephone Exchange. He specifically deposed that true and correct call records have been produced and there is no reason to disbelieve that.It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone18. We are in agreement with the aforesaid findings. Learneds rightly argued that non-production of the certificateSection 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana19. We may point out, at this stage, that when the AFT found the technical defect in Exhibit T-2, it was in support of Section 65-B of the Indian Evidence Act. The AFT had summoned the record in exercise of its power contained in Section 17 of the Actnecessary to pinpoint the alleged discrepancies which according to Dr. Sharma had occurred in these documents as we find that these are suitably take care of by the Tribunal itself and the above discussion as well as the discussion contained hereinafter would reflect the nature of so-called discrepancies and the answer thereto by the AFT23. We, thus, do not agree with the submission of the learned24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad.is of no avail to thet as it is not applicable to the facts and circumstances of the present case.25. At the end, insofar as appeal of thet is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferredSections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all.28. Resultantly, we do not find any merit in the appeal preferred by the Officert has not reinstated in service as thishad, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, thet is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. Thet was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of thet is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference. | 0 | 9,258 | 1,520 | ### 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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as NULL and which could not materialise are still maintained because the company was to earn revenue. 23. We, thus, do not agree with the submission of the learned Counsel for the Respondent that there were discrepancies in the CDR produced by Vodafone before the AFT. In fact, the witness from Vodafone was able to clear all the doubts which were expressed by the Respondent. 24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad. v. State of Himachal Pradesh (2018) 2 SCC 801 is of no avail to the Respondent as it is not applicable to the facts and circumstances of the present case. 25. At the end, insofar as appeal of the Respondent is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferred Under Sections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited as can be seen from the language of these provisions: 30. Appeal to Supreme Court.--(1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed Under Section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this Sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal Under Sub-section (2), the Supreme Court may order that-- (a) the execution of the punishment or the order appealed against be suspended; or (b) if the Appellant is in confinement, he be released on bail: Provided that where an Appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under Clause (a) or Clause (b), as the case may be. 31. Leave to appeal.--(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time. 26. A combined reading of the aforesaid provisions clearly brings out that appeal to this Court has to be on a point of law on general public importance. 27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all. 28. Resultantly, we do not find any merit in the appeal preferred by the Officer. 29. We now advert to the appeal preferred by the Union of India. As pointed out above, the limited scope of this appeal is to be on the quantum of sentence given by the AFT. After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal. 30. The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.
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on oath that he had received these calls and that thewas in contact with him on all these days from his mobile. It shows that the said mobile was being used by theeven after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from theDr. Sharma had made extensive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible13. Another interesting evidence which have surfaced and which nails thet on this aspect is that as per thet himself, he had proceeded to Kochi on June 29, 2011 to join the duty on INS Viraat. For this purpose, he had left Mumbai on June 29, 2011 by Air India AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at 7:20 pm on June 29, 2011. One of the calls was made from this phone at 05:01 pm from Mumbai area. Thereafter, another call was made from this very phone on the same day at 08:01 pm from Kerala area. At 05:01 pm, when the call was made from Mumbai, thet was in Mumbai and his flight left Mumbai at 05:30 pm. He had reached Kochi at 07:20 pm and another call is made at 08:01 pm. This also shows that the Cell Phone with the aforesaid number was with the15. Coming to the second ingredient, in order to prove that sexually explicit calls were received by the wives of the three officers, the prosecution produced these ladies as PW-9, PW-12 and PW-18. They have explained in detail having received these calls and the offending language. To show that the calls were received from the aforesaid phone which belongs to the, the prosecution had produced Call Data Record (CDR) of NOFRA land line numbers. Cdr. Anurag Saxena, Officer-in-Charge of NOFRA who appeared as PW-3 probe the said CDRs of NOFRA Telephone Exchange showing that all the calls had originated from Mobile No. 9564784782. He also produced Exh. P-10, which is the certificate issued by him to the effect that the land line numbers of the three female victims were provided by the NOFRA Telephone Exchange. He specifically deposed that true and correct call records have been produced and there is no reason to disbelieve that.It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone18. We are in agreement with the aforesaid findings. Learneds rightly argued that non-production of the certificateSection 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana19. We may point out, at this stage, that when the AFT found the technical defect in Exhibit T-2, it was in support of Section 65-B of the Indian Evidence Act. The AFT had summoned the record in exercise of its power contained in Section 17 of the Actnecessary to pinpoint the alleged discrepancies which according to Dr. Sharma had occurred in these documents as we find that these are suitably take care of by the Tribunal itself and the above discussion as well as the discussion contained hereinafter would reflect the nature of so-called discrepancies and the answer thereto by the AFT23. We, thus, do not agree with the submission of the learned24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad.is of no avail to thet as it is not applicable to the facts and circumstances of the present case.25. At the end, insofar as appeal of thet is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferredSections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all.28. Resultantly, we do not find any merit in the appeal preferred by the Officert has not reinstated in service as thishad, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, thet is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. Thet was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of thet is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.
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L. Babu Ram Vs. Sri Raghunathji Maharaj and Others | the part of respondent Nos. 3 to 9 were impleaded as defendants in the suit as they were tenants in respect of certain portions of the property. There was no contest against the claim of the appellant on the part of respondent Nos. 3 to 9 and they expressed their willingness to pay rent to whosoever was declared to be the owner of the property. The first and the second respondents. However, seriously disputed the claim of the appellant and contended that Smt. Deva was the full owner of the property under the deed dated October 18, 1884 and she was, therefore, entitled to gift portions of the property in favour of the first and the second respondents and convey full title to them and the appellant had no right, title or interest in any portion of the property. The main question which, therefore, arose for consideration on these pleadings was as to what was the nature of the interest conveyed to Smt. Deva under the deed dated October 18, 1884, whether it was life interest or full ownership. One other subsidiary question was also raised on the pleadings and that was whether the second respondent was the daughters son of Smt. Deva. The trial Court held, on a construction of the deed dated October 18, 1884, that Smt, Deva was only a life estate holder and she was, therefore, not entitled to convey title to the property in favour of respondent Nos. 1 and 2 beyond her lifetime and since the appellant was owner of the property on her death and was accordingly entitled to possession of the same from respondent Nos. 1 and 2. The trial Court also found from the evidence on record that the second respondent was the son of the daughter of Smt. Deva, but on the view taken by it in regard to the construction of the deed dated October 18, 1884, it decreed the suit of the appellant. The decree was, however, reversed by the High Court in appeal at the instance of respondent Nos. 1 and 2. The High Court did not set aside the finding of the trial Court that the second respondent was the son of the daughter of Smt. Deva but, on the question of construction of the deed dated October 18, 1884, it took a different view. The High Court held that what was given to Smt. Deva under the deed dated October 18, 1884 was full ownership and the gift deeds executed by her were valid and effective and the appellant consequently did not acquire any right, title or interest in the property on her death. In the result, the suit of the appellant was dismissed by the High Court. The appellant thereupon preferred the present appeal in this Court by obtaining a certificate from the High Court.3. It is not necessary for the purpose of this appeal to decide which of the two constructions of the deed dated October 18, 1884 is correct, whether the one adopted by the trial Court or the one which found favour with the High Court. We will assume with the appellant that the construction placed by the trial Court is correct and that accepted by the High Court is erroneous.The deed dated October 18, 1884, so far as material, runs as follows :I am in proprietary possession of the property mentioned above. In order to avoid future disputes, I have, of my own accord and free will, while in a sound site of body and mind made a gift of - one house pucca and Kham, situate in Bazar Khana, Qasba Etah and two shops built pucca and Kham, situate in Main Ganj Qasba Etah, to my daughter-in-law aforesaid. I have removed my possession and occupation from the property and have put the women in possession and occupation thereof. The Musammats, aforesaid, should remain in possession and occupation of the property like myself. I shall have no claim thereto. But so long as I am alive, I shall remain the owner in possession of the said property, After my death, the musammats shall become the owners in possession of the property as specified in this document. My daughter-in-law shall have no right to make any kind of transfer in respect of the property given to her by me. So long as she remains alive, she shall be the owner in possession thereof. After her death the members of her family shall be the owner thereof.4. It is clear that even on the view that Smt. Deva was given only a life interest in the property under the deed dated October 18, 1884, the disposition of the property made by the settlor after her death was that "the members of her family shall be the owner thereof". It is significant to note that the settlor did not use the words that on the death of Smt. Deva "the members of my family shall be the owners thereof", but provided that "the members of my family shall be the owners thereof. The property was, therefore, plainly and unquestionably given to the members of the family of Smt, Deva on her death and it was not to go the members of the family of the settlor. Now, the second respondent was the son of the daughter of Smt. Deva and he was, therefore, the nearest member of her her family. The appellant was merely a collateral of Shri Krishna Das and could not possibly be regarded as a member of the family of Smt. Deva. The conclusion must, therefore, inevitably follow that, even if Smt. Deva had merely a life interest under the deed dated October 18, 1884, the property, on her death, went to the second respondent as the nearest member of her family and not to the appellant. The High Court was in the circumstances right in taking the view that the appellant had no right, title or interest in the property and was not entitled to possession of the same. | 0[ds]4. It is clear that even on the view that Smt. Deva was given only a life interest in the property under the deed dated October 18, 1884, the disposition of the property made by the settlor after her death was that "the members of her family shall be the owner thereof". It is significant to note that the settlor did not use the words that on the death of Smt. Deva "the members of my family shall be the owners thereof", but provided that "the members of my family shall be the owners thereof. The property was, therefore, plainly and unquestionably given to the members of the family of Smt, Deva on her death and it was not to go the members of the family of the settlor. Now, the second respondent was the son of the daughter of Smt. Deva and he was, therefore, the nearest member of her her family. The appellant was merely a collateral of Shri Krishna Das and could not possibly be regarded as a member of the family of Smt. Deva. The conclusion must, therefore, inevitably follow that, even if Smt. Deva had merely a life interest under the deed dated October 18, 1884, the property, on her death, went to the second respondent as the nearest member of her family and not to the appellant. The High Court was in the circumstances right in taking the view that the appellant had no right, title or interest in the property and was not entitled to possession of the same. | 0 | 1,786 | 295 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the part of respondent Nos. 3 to 9 were impleaded as defendants in the suit as they were tenants in respect of certain portions of the property. There was no contest against the claim of the appellant on the part of respondent Nos. 3 to 9 and they expressed their willingness to pay rent to whosoever was declared to be the owner of the property. The first and the second respondents. However, seriously disputed the claim of the appellant and contended that Smt. Deva was the full owner of the property under the deed dated October 18, 1884 and she was, therefore, entitled to gift portions of the property in favour of the first and the second respondents and convey full title to them and the appellant had no right, title or interest in any portion of the property. The main question which, therefore, arose for consideration on these pleadings was as to what was the nature of the interest conveyed to Smt. Deva under the deed dated October 18, 1884, whether it was life interest or full ownership. One other subsidiary question was also raised on the pleadings and that was whether the second respondent was the daughters son of Smt. Deva. The trial Court held, on a construction of the deed dated October 18, 1884, that Smt, Deva was only a life estate holder and she was, therefore, not entitled to convey title to the property in favour of respondent Nos. 1 and 2 beyond her lifetime and since the appellant was owner of the property on her death and was accordingly entitled to possession of the same from respondent Nos. 1 and 2. The trial Court also found from the evidence on record that the second respondent was the son of the daughter of Smt. Deva, but on the view taken by it in regard to the construction of the deed dated October 18, 1884, it decreed the suit of the appellant. The decree was, however, reversed by the High Court in appeal at the instance of respondent Nos. 1 and 2. The High Court did not set aside the finding of the trial Court that the second respondent was the son of the daughter of Smt. Deva but, on the question of construction of the deed dated October 18, 1884, it took a different view. The High Court held that what was given to Smt. Deva under the deed dated October 18, 1884 was full ownership and the gift deeds executed by her were valid and effective and the appellant consequently did not acquire any right, title or interest in the property on her death. In the result, the suit of the appellant was dismissed by the High Court. The appellant thereupon preferred the present appeal in this Court by obtaining a certificate from the High Court.3. It is not necessary for the purpose of this appeal to decide which of the two constructions of the deed dated October 18, 1884 is correct, whether the one adopted by the trial Court or the one which found favour with the High Court. We will assume with the appellant that the construction placed by the trial Court is correct and that accepted by the High Court is erroneous.The deed dated October 18, 1884, so far as material, runs as follows :I am in proprietary possession of the property mentioned above. In order to avoid future disputes, I have, of my own accord and free will, while in a sound site of body and mind made a gift of - one house pucca and Kham, situate in Bazar Khana, Qasba Etah and two shops built pucca and Kham, situate in Main Ganj Qasba Etah, to my daughter-in-law aforesaid. I have removed my possession and occupation from the property and have put the women in possession and occupation thereof. The Musammats, aforesaid, should remain in possession and occupation of the property like myself. I shall have no claim thereto. But so long as I am alive, I shall remain the owner in possession of the said property, After my death, the musammats shall become the owners in possession of the property as specified in this document. My daughter-in-law shall have no right to make any kind of transfer in respect of the property given to her by me. So long as she remains alive, she shall be the owner in possession thereof. After her death the members of her family shall be the owner thereof.4. It is clear that even on the view that Smt. Deva was given only a life interest in the property under the deed dated October 18, 1884, the disposition of the property made by the settlor after her death was that "the members of her family shall be the owner thereof". It is significant to note that the settlor did not use the words that on the death of Smt. Deva "the members of my family shall be the owners thereof", but provided that "the members of my family shall be the owners thereof. The property was, therefore, plainly and unquestionably given to the members of the family of Smt, Deva on her death and it was not to go the members of the family of the settlor. Now, the second respondent was the son of the daughter of Smt. Deva and he was, therefore, the nearest member of her her family. The appellant was merely a collateral of Shri Krishna Das and could not possibly be regarded as a member of the family of Smt. Deva. The conclusion must, therefore, inevitably follow that, even if Smt. Deva had merely a life interest under the deed dated October 18, 1884, the property, on her death, went to the second respondent as the nearest member of her family and not to the appellant. The High Court was in the circumstances right in taking the view that the appellant had no right, title or interest in the property and was not entitled to possession of the same.
### Response:
0
### Explanation:
4. It is clear that even on the view that Smt. Deva was given only a life interest in the property under the deed dated October 18, 1884, the disposition of the property made by the settlor after her death was that "the members of her family shall be the owner thereof". It is significant to note that the settlor did not use the words that on the death of Smt. Deva "the members of my family shall be the owners thereof", but provided that "the members of my family shall be the owners thereof. The property was, therefore, plainly and unquestionably given to the members of the family of Smt, Deva on her death and it was not to go the members of the family of the settlor. Now, the second respondent was the son of the daughter of Smt. Deva and he was, therefore, the nearest member of her her family. The appellant was merely a collateral of Shri Krishna Das and could not possibly be regarded as a member of the family of Smt. Deva. The conclusion must, therefore, inevitably follow that, even if Smt. Deva had merely a life interest under the deed dated October 18, 1884, the property, on her death, went to the second respondent as the nearest member of her family and not to the appellant. The High Court was in the circumstances right in taking the view that the appellant had no right, title or interest in the property and was not entitled to possession of the same.
|
Wander Limited and Another Vs. Antox India P. Limited | its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721)".... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton .. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well settled principle in an individual case. "The appellate judgment does not seem to defer to this principle15. We may now examine the tenability of the grounds on which a Division Bench reversed the Single Judges refusal. The passing-off action was based on the asserted right to a trademark said to have been acquired by continuous user. According to the appellate bench the user by Antox pursuant to the Drug Controllers licence and after the undertaking given by Wander Ltd." * .. was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because...". In a passing-off action this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own. Prime facie. Antoxs case appears silent on this requirement in the context of a specific finding of the Single Judge as to user by Wander Ltd. prior to June 1986. Antoxs user is admittedly after June 1986 16. An infringement action is available where there is violation of specific property right acquired under and recognised by the statute. In a passing-off action, however, the plaintiffs right in independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injuries, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader. Speaking of the legal clarification of this form of action, Lord Diplock said"Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms, to some of which separate labels have become attached in English law, Conspiracy to injure a person in his trade or business is one, slander of goods another, but most protean is that which is generally and nowadays, perhaps misleadingly, described as "passing-Off: ". The form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. Emersons maker of the better mousetrap of secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares." * 17. Antox says that it is free from the inhibitions of the terms of that agreement dated March 28, 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. Antox says its user is referable to the Drug Controllers licence. But even assuming that the terms of the agreement dated March 28, 1986 are not to be put into the scales to determine the title to and character of the user by Antox, two crucial positions still stare Antox in the face.18. The first is that the Drug Controllers licence claimed by Antox as the source of its right to the user of the trademark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered trademark of Wander Ltd. The effect of this on the quality of the user has not been examined by the appellate bench.19. Secondly, even if a prior registration of a trademark is not necessarily evidence of prior user as contended by Sri Rao, Antox cannot, prima facie, explain how in a passing-off action its user subsequent to June 1986 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate tablets under the trademark "Cal-De-Ce" at its own factory in Bombay from August 1983 to June 1986. The appellate bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiffs case in a passing-off action, It appears to us that it was not an appropriate case where the appellate bench could have interfered with the discretion exercised by the learned Single Judge. | 1[ds]13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. Thefirst is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antoxs alleged user of the trademark on which the passing off action isfounded. We shall deal with these two separately.14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721)".... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton .. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well settled principle in an individualappellate judgment does not seem to defer to this principle15. We may now examine the tenability of the grounds on which a Division Bench reversed the Single Judges refusal. Theaction was based on the asserted right to a trademark said to have been acquired by continuous user. According to the appellate bench the user by Antox pursuant to the Drug Controllers licence and after the undertaking given by Wander Ltd."was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because...". In aaction this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own. Prime facie. Antoxs case appears silent on this requirement in the context of a specific finding of the Single Judge as to user by Wander Ltd. prior to June 1986. Antoxs user is admittedly after JuneAn infringement action is available where there is violation of specific property right acquired under and recognised by the statute. In aaction, however, the plaintiffs right in independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception.is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort ofinvolves a misrepresentation made by a trader to his prospective customers calculated to injuries, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader. Speaking of the legal clarification of this form of action, Lord Diplock said"Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms, to some of which separate labels have become attached in English law, Conspiracy to injure a person in his trade or business is one, slander of goods another, but most protean is that which is generally and nowadays, perhaps misleadingly, described asThe form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. Emersons maker of the better mousetrap of secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares."Antox says that it is free from the inhibitions of the terms of that agreement dated March 28, 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. Antox says its user is referable to the Drug Controllers licence. But even assuming that the terms of the agreement dated March 28, 1986 are not to be put into the scales to determine the title to and character of the user by Antox, two crucial positions still stare Antox in the face.18. The first is that the Drug Controllers licence claimed by Antox as the source of its right to the user of the trademark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered trademark of Wander Ltd. The effect of this on the quality of the user has not been examined by the appellate bench.19. Secondly, even if a prior registration of a trademark is not necessarily evidence of prior user as contended by Sri Rao, Antox cannot, prima facie, explain how in aaction its user subsequent to June 1986 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate tablets under the trademarkat its own factory in Bombay from August 1983 to June 1986. The appellate bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiffs case in aaction, It appears to us that it was not an appropriate case where the appellate bench could have interfered with the discretion exercised by the learned Single Judge. | 1 | 2,918 | 1,185 | ### 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:
its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721)".... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton .. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well settled principle in an individual case. "The appellate judgment does not seem to defer to this principle15. We may now examine the tenability of the grounds on which a Division Bench reversed the Single Judges refusal. The passing-off action was based on the asserted right to a trademark said to have been acquired by continuous user. According to the appellate bench the user by Antox pursuant to the Drug Controllers licence and after the undertaking given by Wander Ltd." * .. was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because...". In a passing-off action this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own. Prime facie. Antoxs case appears silent on this requirement in the context of a specific finding of the Single Judge as to user by Wander Ltd. prior to June 1986. Antoxs user is admittedly after June 1986 16. An infringement action is available where there is violation of specific property right acquired under and recognised by the statute. In a passing-off action, however, the plaintiffs right in independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injuries, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader. Speaking of the legal clarification of this form of action, Lord Diplock said"Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms, to some of which separate labels have become attached in English law, Conspiracy to injure a person in his trade or business is one, slander of goods another, but most protean is that which is generally and nowadays, perhaps misleadingly, described as "passing-Off: ". The form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. Emersons maker of the better mousetrap of secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares." * 17. Antox says that it is free from the inhibitions of the terms of that agreement dated March 28, 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. Antox says its user is referable to the Drug Controllers licence. But even assuming that the terms of the agreement dated March 28, 1986 are not to be put into the scales to determine the title to and character of the user by Antox, two crucial positions still stare Antox in the face.18. The first is that the Drug Controllers licence claimed by Antox as the source of its right to the user of the trademark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered trademark of Wander Ltd. The effect of this on the quality of the user has not been examined by the appellate bench.19. Secondly, even if a prior registration of a trademark is not necessarily evidence of prior user as contended by Sri Rao, Antox cannot, prima facie, explain how in a passing-off action its user subsequent to June 1986 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate tablets under the trademark "Cal-De-Ce" at its own factory in Bombay from August 1983 to June 1986. The appellate bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiffs case in a passing-off action, It appears to us that it was not an appropriate case where the appellate bench could have interfered with the discretion exercised by the learned Single Judge.
### Response:
1
### Explanation:
against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721)".... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton .. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well settled principle in an individualappellate judgment does not seem to defer to this principle15. We may now examine the tenability of the grounds on which a Division Bench reversed the Single Judges refusal. Theaction was based on the asserted right to a trademark said to have been acquired by continuous user. According to the appellate bench the user by Antox pursuant to the Drug Controllers licence and after the undertaking given by Wander Ltd."was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because...". In aaction this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own. Prime facie. Antoxs case appears silent on this requirement in the context of a specific finding of the Single Judge as to user by Wander Ltd. prior to June 1986. Antoxs user is admittedly after JuneAn infringement action is available where there is violation of specific property right acquired under and recognised by the statute. In aaction, however, the plaintiffs right in independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception.is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort ofinvolves a misrepresentation made by a trader to his prospective customers calculated to injuries, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader. Speaking of the legal clarification of this form of action, Lord Diplock said"Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms, to some of which separate labels have become attached in English law, Conspiracy to injure a person in his trade or business is one, slander of goods another, but most protean is that which is generally and nowadays, perhaps misleadingly, described asThe form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. Emersons maker of the better mousetrap of secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares."Antox says that it is free from the inhibitions of the terms of that agreement dated March 28, 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. Antox says its user is referable to the Drug Controllers licence. But even assuming that the terms of the agreement dated March 28, 1986 are not to be put into the scales to determine the title to and character of the user by Antox, two crucial positions still stare Antox in the face.18. The first is that the Drug Controllers licence claimed by Antox as the source of its right to the user of the trademark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered trademark of Wander Ltd. The effect of this on the quality of the user has not been examined by the appellate bench.19. Secondly, even if a prior registration of a trademark is not necessarily evidence of prior user as contended by Sri Rao, Antox cannot, prima facie, explain how in aaction its user subsequent to June 1986 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate tablets under the trademarkat its own factory in Bombay from August 1983 to June 1986. The appellate bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiffs case in aaction, It appears to us that it was not an appropriate case where the appellate bench could have interfered with the discretion exercised by the learned Single Judge.
|
Ashokkumar H.Fulwadhya, Director of M/S.Harisons Steel Private Limited Vs. Union of India & Others | V.C. Daga, J.Heard learned counsel for the petitioners and learned counsel for the respondents. Perused petitions.2. Rule, returnable forthwith. Petitions are heard finally by consent of parties.The Facts :3. These petitions are directed against the order dated 4th August, 2009 by the Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ( CESTAT for short) directing the petitioners Mr.Ashokkumar and Mr.Daulatkumar to pre-deposit 25% of the penalty imposed on each of them, they being the directors of M/s.Harisons Steel Pvt.Ltd.Submissions :4. Learned counsel for the petitioners, in short, submits that imposition of personal penalty on the director is not permissible under rule 13(1) of Cenvat Credit Rules, 2002 (Cenvat Rules for short) as this rule contemplates penalty only on the person availing credit. In the case in hand, person, who has availed Cenvat credit, is a private limited company and not the directors of the company. The petitioners are the directors, who did not avail this credit. In the submission of learned counsel, in spite of this clear legal position, the Tribunal erroneously without considering the contention raised in this behalf, has passed the impugned order directing the petitioners to pre-deposit 25% of the penalty imposed on each of them.5. Per contra, Mr.Desai, learned senior counsel appearing for the respondents tried to counter the above submissions but could not take his submission to the logical end and found it difficult to support the impugned order.Consideration :6. In order to appreciate the submissions canvassed by learned counsel appearing for the petitioners, it would be profitable to turn to rule 13 of the Cenvat Rules applicable to the facts of the case in hand:"RULE 13. Confiscation and penalty.- (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to be penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater." (Emphasis supplied.)7. The aforesaid rule opens with the wording If any person, takes CENVAT credit ..... These words are indicative of the fact that the penalty is imposable on the person who takes Cenvat credit. In other words, the person who has availed CENVAT credit is the only person liable to be visited with the penalty. None of the petitioners has availed CENVAT credit. It is availed by the Company alone; where the petitioners are directors. Therefore, the penalty under rule 13(1) of the Cenvat Rules is imposable only on the person who has availed Cenvat credit i.e. on the Company, who is a manufacturer. The petitioners cannot be said to be manufactures availing Cenvat credit. They are the directors of the private limited company as such they could not have been within the net of rule 13 of the Cenvat Rules.8. In Union of India v. M/s.R.B.Shreeram Durga Prasad (P) Ltd. and ors., 1969 (2) SCR 727 , the Apex Court ruled that a penal provision has to be construed strictly. Considered in this backdrop, in absence of specific words, no person other than the person taking Cenvat credit can be inferred. The relevant provisions of the Central Excise Act, 1944 (Act for short) show that wherever Legislature desired to include any other person or agent, a specific language in that behalf is used. One of such readily referable provision could be proviso to sub-section of section 11A, which reads as under:"11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words one year, the words five years were substituted;" (Emphasis supplied)9. Perusal of the aforesaid proviso would demonstrate that even the agent is brought within the purview of the legislative net. In contrast to the above, rule 13 of the Cenvat Rules brings within its fold only that person who takes Cenvat credit and no other person. | 1[ds]In Union of India v. M/s.R.B.Shreeram Durga Prasad (P) Ltd. and ors., 1969 (2) SCR 727 , the Apex Court ruled that a penal provision has to be construed strictly. Considered in this backdrop, in absence of specific words, no person other than the person taking Cenvat credit can be inferred. The relevant provisions of the Central Excise Act, 1944 (Act for short) show that wherever Legislature desired to include any other person or agent, a specific language in that behalf is used. One of such readily referable provision could be proviso toof section 11A, which reads as under:"11A. Recovery of duties not levied or not paid orid or erroneously refunded. (1) When any duty of excise has not been levied or paid or has beenid or erroneously refunded, whether or not suchy oror erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has beenid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:Provided that where any duty of excise has not been levied or paid or has beenid or erroneously refunded by reason of fraud, collusion or any willfulor suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of thisshall have effect, as if for the words one year, the words five years were substituted;" (Emphasis supplied)9.Perusal of the aforesaid proviso would demonstrate that even the agent is brought within the purview of the legislative net. In contrast to the above, rule 13 of the Cenvat Rules brings within its fold only that person who takes Cenvat credit and no other person. | 1 | 1,019 | 392 | ### 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:
V.C. Daga, J.Heard learned counsel for the petitioners and learned counsel for the respondents. Perused petitions.2. Rule, returnable forthwith. Petitions are heard finally by consent of parties.The Facts :3. These petitions are directed against the order dated 4th August, 2009 by the Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ( CESTAT for short) directing the petitioners Mr.Ashokkumar and Mr.Daulatkumar to pre-deposit 25% of the penalty imposed on each of them, they being the directors of M/s.Harisons Steel Pvt.Ltd.Submissions :4. Learned counsel for the petitioners, in short, submits that imposition of personal penalty on the director is not permissible under rule 13(1) of Cenvat Credit Rules, 2002 (Cenvat Rules for short) as this rule contemplates penalty only on the person availing credit. In the case in hand, person, who has availed Cenvat credit, is a private limited company and not the directors of the company. The petitioners are the directors, who did not avail this credit. In the submission of learned counsel, in spite of this clear legal position, the Tribunal erroneously without considering the contention raised in this behalf, has passed the impugned order directing the petitioners to pre-deposit 25% of the penalty imposed on each of them.5. Per contra, Mr.Desai, learned senior counsel appearing for the respondents tried to counter the above submissions but could not take his submission to the logical end and found it difficult to support the impugned order.Consideration :6. In order to appreciate the submissions canvassed by learned counsel appearing for the petitioners, it would be profitable to turn to rule 13 of the Cenvat Rules applicable to the facts of the case in hand:"RULE 13. Confiscation and penalty.- (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to be penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater." (Emphasis supplied.)7. The aforesaid rule opens with the wording If any person, takes CENVAT credit ..... These words are indicative of the fact that the penalty is imposable on the person who takes Cenvat credit. In other words, the person who has availed CENVAT credit is the only person liable to be visited with the penalty. None of the petitioners has availed CENVAT credit. It is availed by the Company alone; where the petitioners are directors. Therefore, the penalty under rule 13(1) of the Cenvat Rules is imposable only on the person who has availed Cenvat credit i.e. on the Company, who is a manufacturer. The petitioners cannot be said to be manufactures availing Cenvat credit. They are the directors of the private limited company as such they could not have been within the net of rule 13 of the Cenvat Rules.8. In Union of India v. M/s.R.B.Shreeram Durga Prasad (P) Ltd. and ors., 1969 (2) SCR 727 , the Apex Court ruled that a penal provision has to be construed strictly. Considered in this backdrop, in absence of specific words, no person other than the person taking Cenvat credit can be inferred. The relevant provisions of the Central Excise Act, 1944 (Act for short) show that wherever Legislature desired to include any other person or agent, a specific language in that behalf is used. One of such readily referable provision could be proviso to sub-section of section 11A, which reads as under:"11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words one year, the words five years were substituted;" (Emphasis supplied)9. Perusal of the aforesaid proviso would demonstrate that even the agent is brought within the purview of the legislative net. In contrast to the above, rule 13 of the Cenvat Rules brings within its fold only that person who takes Cenvat credit and no other person.
### Response:
1
### Explanation:
In Union of India v. M/s.R.B.Shreeram Durga Prasad (P) Ltd. and ors., 1969 (2) SCR 727 , the Apex Court ruled that a penal provision has to be construed strictly. Considered in this backdrop, in absence of specific words, no person other than the person taking Cenvat credit can be inferred. The relevant provisions of the Central Excise Act, 1944 (Act for short) show that wherever Legislature desired to include any other person or agent, a specific language in that behalf is used. One of such readily referable provision could be proviso toof section 11A, which reads as under:"11A. Recovery of duties not levied or not paid orid or erroneously refunded. (1) When any duty of excise has not been levied or paid or has beenid or erroneously refunded, whether or not suchy oror erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has beenid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:Provided that where any duty of excise has not been levied or paid or has beenid or erroneously refunded by reason of fraud, collusion or any willfulor suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of thisshall have effect, as if for the words one year, the words five years were substituted;" (Emphasis supplied)9.Perusal of the aforesaid proviso would demonstrate that even the agent is brought within the purview of the legislative net. In contrast to the above, rule 13 of the Cenvat Rules brings within its fold only that person who takes Cenvat credit and no other person.
|
Kameshwar Prasad And Others Vs. The State Of Bihar And Another | the benefit of the exposition of the meaning of the expression "in the interest of public order" in these two clause by this Court in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960-2 SCR 821 : (AIR 1960 SC 633 ). Speaking for the Court Subba Rao J. summarised his conclusion on the point in these terms:"Public order (Art. 19(2) and (3) is synonymous with public safety and tranquility. It is the absence of disorder involving breaches of local significance on contradistinction to national upheavals such as revolution, civil strife, was affecting the security of the State."The learned Judge further stated that in order that a legislation may be "in the interests of public order" there must be a proximate and reasonable nexus between the nature of the speech prohibited and public order. The learned Judge rejected the argument that the phrase "in the interests of public order" which is wider than the words "for the maintenance of public order" which were found in the Article a originally enacted - thereby sanctioned the enactment of a law which restricted the right merely because the speech had a tendency however remore to disturb public order. The connection has to be intimate, real and rational. The validity of the rule now impugned has to be judged with reference to the tests here propounded.16. If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.17. We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.18. Learned Counsel for the respondent and those who supported the validity of the rule could not suggest that on the language of the rule as it stood, it was possible to so read it as to separate the legal from the unconstitutional portion of the provision. As no such separation is possible the entire rule has to be struck down as unconstitutional.19. We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. For instance, S. 54(2) of the Income Tax Act, 1922 enacts:"If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine".Section 128(1) of the Representation of the People Act, 1951 enjoins on every officer, clerk, agent etc. who performs any duty in connection with the recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which may extend to three months or with fine. It cannot be contended that provisions on these or similar lines in these or other enactments restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performance of duties of their office to others. The information having been obtained by them in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Constitution. | 1[ds]Obviously proceeds on the basis of persons in the service of Government being entitled to the protection of the fundamental rights guaranteed by Part III of the Constitution and is inserted to enable special provision being made for the abrogation, if necessary, of the guaranteed freedom in the case of two special services only, viz., the army and the police force. The approach to the question regarding the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaranteed rights contained in Arts. 19(2) and 19(3). In regard to both these clauses the only relevant criteria which has been suggested by the respondent-State is that the rule is framed "in the interest of public order". A demonstration may be defined as an expression of ones feelings by outward signs". A demonstration such as is prohibited by the rule may be of the most innocent type - peaceful, orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours- demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of leading to disorder. If the rule had confined itself to demonstrations of a type which would lead to disorder then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type-innocent as well as otherwise-and in consequence its validity cannot befind ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Art. 33. That Article selects two of the Services under the State - members of the armed forces and forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Art. 19(1)(e) and"demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society . . . . . .. . . . as by a parade or mass-meeting. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of ones ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). If can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result. | 1 | 5,293 | 1,373 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
the benefit of the exposition of the meaning of the expression "in the interest of public order" in these two clause by this Court in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960-2 SCR 821 : (AIR 1960 SC 633 ). Speaking for the Court Subba Rao J. summarised his conclusion on the point in these terms:"Public order (Art. 19(2) and (3) is synonymous with public safety and tranquility. It is the absence of disorder involving breaches of local significance on contradistinction to national upheavals such as revolution, civil strife, was affecting the security of the State."The learned Judge further stated that in order that a legislation may be "in the interests of public order" there must be a proximate and reasonable nexus between the nature of the speech prohibited and public order. The learned Judge rejected the argument that the phrase "in the interests of public order" which is wider than the words "for the maintenance of public order" which were found in the Article a originally enacted - thereby sanctioned the enactment of a law which restricted the right merely because the speech had a tendency however remore to disturb public order. The connection has to be intimate, real and rational. The validity of the rule now impugned has to be judged with reference to the tests here propounded.16. If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.17. We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.18. Learned Counsel for the respondent and those who supported the validity of the rule could not suggest that on the language of the rule as it stood, it was possible to so read it as to separate the legal from the unconstitutional portion of the provision. As no such separation is possible the entire rule has to be struck down as unconstitutional.19. We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. For instance, S. 54(2) of the Income Tax Act, 1922 enacts:"If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine".Section 128(1) of the Representation of the People Act, 1951 enjoins on every officer, clerk, agent etc. who performs any duty in connection with the recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which may extend to three months or with fine. It cannot be contended that provisions on these or similar lines in these or other enactments restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performance of duties of their office to others. The information having been obtained by them in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Constitution.
### Response:
1
### Explanation:
all demonstrations of whatever type-innocent as well as otherwise-and in consequence its validity cannot befind ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Art. 33. That Article selects two of the Services under the State - members of the armed forces and forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Art. 19(1)(e) and"demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society . . . . . .. . . . as by a parade or mass-meeting. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of ones ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). If can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.
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Wazirchand Mahajan And Anr Vs. Union Of India | be exercised by a Court entertaining an application, the application could not be deemed to be one under the Code. It is true that in the Limitation Act originally enacted in 1908, by the group of Arts. 158 to 180 only applications under the Code of Civil Procedure were dealt with.By the amendment made by the Arbitration Act 10 of 1940, Arts. 158 and 178 were modified and in the articles for the expression "under the Code of Civil Procedure, 1908" the words "under the Arbitration Act 1940" were substituted. The reason which persuaded the Courts from time to time to hold that the expression under the Code" must be deemed to be added in Art. 181 did not continue to apply after the amendment of Arts. 158 and 178. It may be recalled that the law relating to consensual arbitration, except in respect of cases governed by Arbitration Act, 1899, was enacted in Sch. II of the Code of Civil Procedure, 1908. By the enactment of Act 10 of 1940, Sch II of the Code of Civil Procedure and the Indian Arbitration Act, 1899, were repealed and an Act dealing with all arbitration was enacted, and it was found necessary on that account to amend Arts. 158 and 178 so as to make them consistent with the legislative changes. The reason which persuaded the Courts to hold that the expression "under the Code" was deemed added to Art. 181 has now disappeared, but on that account the expression "applications for which no period of limitation is provided elsewhere in this Schedule" in Art. 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 1940. 5. If Art. 181 of the Limitation Act only governs applications under the Code of Civil Procedure for which no period of limitation is provided under the Schedule, an application under the Arbitration Act, 1940 not being an application under the Code of Civil Procedure, unless there is some provision, which by express enactment or plain intendment to the contrary in the Arbitration Act, will not be governed by that Article. 6. Counsel for the Union of India contended that S. 37 (1) of the Arbitration Act, 1940, indicates a contrary intention. That sub-section provides:"All the provisions of the Indian Limitation Act, 1908 shall apply to arbitration as they apply to proceedings in Court." In our judgment, this clause does not govern an application for filing an arbitration agreement under S. 20 of the Arbitration Act. In terms, it provides, that the provisions of the Indian Limitation Act are to apply to arbitrations as they apply to proceedings in Court. In other words, an arbitrator in dealing with a matter submitted to him is bound to apply the provisions of the Limitation Act: S. 37 (1) has no refer" once to an application under the Arbitration Act for effectuating a reference to the arbitrator, such as an application for filing an arbitration agreement. The genesis of this sub-section is to be found in the judgment of the Judicial Committee of the Privy Council in Ramdutt Ramkissendass v. E. D. Sassoon and Co., 56 Ind App 128: (AIR 1929 PC 103). In that case the Judicial Committee observed that even though S. 3 of the Limitation Act deals primarily with suits, appeals and applications made in law courts and makes no reference to arbitration proceedings and, therefore, the Limitation Act does not in terms apply to arbitrations in mercantile reference, it would be"an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every defence which would have been open in a Court of law can be equally proponed for the arbitrators decision unless the parties have agreed to exclude that defence. Were it otherwise, a claim for breach of a contract containing a reference clause could be brought at any time, it might be twenty or thirty years after the cause of action had arisen although the Legislature had prescribed a limit of three years for the enforcement of such a claim in any application that might be made to the law courts." In enacting the Arbitration Act, 1940 the Legislature incorporated, with some modification, the rule which was regarded by the Judicial Committee as implicit in a commercial reference under an arbitration agreement. The legislature provided that all the provisions of the Limitation Act, 1908 shall apply to arbitrations as they apply to proceedings in Court. 7. There is no doubt that Cl. (1) of S. 37 of the Arbitration Act deals only with the authority of the arbitrator to dead with and decide any dispute referred to him: it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But S. 37 (1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under S. 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose. In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation: that question falls within the province of the arbitrator to whom the dispute is referred. | 0[ds]It is true that in Hansraj Guptas case, 60 Ind App 13: (AIR 1933 PC 63 ), the Judicial Committee was dealing with the period of limitation for filing an application under S. 186 (1) of the Indian Companies Act 1913, to order a contributory in a winding-up to pay a debt; and Sha Mulchands case, 1953 SCR 351 : (AIR 1953 SC 98 ), related to an application under the Indian Companies Act, 1913, for rectification of the share-register and restoration of the name of a member whose shares were forfeited for non-payment of calls. In the Bombay Gas Co.s case, (1964) 3 SCR 709 : (AIR 1964 SC 752 ), this Court was dealing with an application for enforcement of an order under S. 33C (2) of the Industrial Disputes Act, 14 of 1947 for computation of benefit in terms of money and for a direction to the employers to pay the same. But in each case the decision of the Court proceeded upon the general ground that Art. 181 of the Limitation Act, 1908, governed applications under the Code of Civil Procedure. This Court impliedly rejected in each case the argument that merely because powers under the Code of Civil Procedure may be exercised by a Court entertaining an application, the application could not be deemed to be one under the Code. It is true that in the Limitation Act originally enacted in 1908, by the group of Arts. 158 to 180 only applications under the Code of Civil Procedure were dealt with.By the amendment made by the Arbitration Act 10 of 1940, Arts. 158 and 178 were modified and in the articles for the expression "under the Code of Civil Procedure, 1908" the words "under the Arbitration Act 1940" were substituted. The reason which persuaded the Courts from time to time to hold that the expression under the Code" must be deemed to be added in Art. 181 did not continue to apply after the amendment of Arts. 158 and 178. It may be recalled that the law relating to consensual arbitration, except in respect of cases governed by Arbitration Act, 1899, was enacted in Sch. II of the Code of Civil Procedure, 1908. By the enactment of Act 10 of 1940, Sch II of the Code of Civil Procedure and the Indian Arbitration Act, 1899, were repealed and an Act dealing with all arbitration was enacted, and it was found necessary on that account to amend Arts. 158 and 178 so as to make them consistent with the legislative changes. The reason which persuaded the Courts to hold that the expression "under the Code" was deemed added to Art. 181 has now disappeared, but on that account the expression "applications for which no period of limitation is provided elsewhere in this Schedule" in Art. 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 19405. If Art. 181 of the Limitation Act only governs applications under the Code of Civil Procedure for which no period of limitation is provided under the Schedule, an application under the Arbitration Act, 1940 not being an application under the Code of Civil Procedure, unless there is some provision, which by express enactment or plain intendment to the contrary in the Arbitration Act, will not be governed by that ArticleIn our judgment, this clause does not govern an application for filing an arbitration agreement under S. 20 of the Arbitration Act. In terms, it provides, that the provisions of the Indian Limitation Act are to apply to arbitrations as they apply to proceedings in Court. In other words, an arbitrator in dealing with a matter submitted to him is bound to apply the provisions of the Limitation Act: S. 37 (1) has no refer" once to an application under the Arbitration Act for effectuating a reference to the arbitrator, such as an application for filing an arbitration agreement. The genesis of this sub-section is to be found in the judgment of the Judicial Committee of the Privy Council in Ramdutt Ramkissendass v. E. D. Sassoon and Co., 56 Ind App 128: (AIR 1929 PC 103). In that case the Judicial Committee observed that even though S. 3 of the Limitation Act deals primarily with suits, appeals and applications made in law courts and makes no reference to arbitration proceedings and, therefore, the Limitation Act does not in terms apply to arbitrations in mercantile reference, it would beIn enacting the Arbitration Act, 1940 the Legislature incorporated, with some modification, the rule which was regarded by the Judicial Committee as implicit in a commercial reference under an arbitration agreement. The legislature provided that all the provisions of the Limitation Act, 1908 shall apply to arbitrations as they apply to proceedings in Court7. There is no doubt that Cl. (1) of S. 37 of the Arbitration Act deals only with the authority of the arbitrator to dead with and decide any dispute referred to him: it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But S. 37 (1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under S. 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose. In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation: that question falls within the province of the arbitrator to whom the dispute is referred3. The terms of Art. 181 are general, and are apparently not restricted to applications under the Code of Civil Procedure. But that Article is included in the group of articles which fall under the head "Third Division Applications". As originally enacted all applications contemplated to be made under Arts. 158 to 180, were applications made under the Code of Civil Procedure and there was a catena of authorities holding that in Art. 181 the expression under the Code of Civil Procedure" must be deemed to be necessarily implicit. | 0 | 2,358 | 1,262 | ### 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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be exercised by a Court entertaining an application, the application could not be deemed to be one under the Code. It is true that in the Limitation Act originally enacted in 1908, by the group of Arts. 158 to 180 only applications under the Code of Civil Procedure were dealt with.By the amendment made by the Arbitration Act 10 of 1940, Arts. 158 and 178 were modified and in the articles for the expression "under the Code of Civil Procedure, 1908" the words "under the Arbitration Act 1940" were substituted. The reason which persuaded the Courts from time to time to hold that the expression under the Code" must be deemed to be added in Art. 181 did not continue to apply after the amendment of Arts. 158 and 178. It may be recalled that the law relating to consensual arbitration, except in respect of cases governed by Arbitration Act, 1899, was enacted in Sch. II of the Code of Civil Procedure, 1908. By the enactment of Act 10 of 1940, Sch II of the Code of Civil Procedure and the Indian Arbitration Act, 1899, were repealed and an Act dealing with all arbitration was enacted, and it was found necessary on that account to amend Arts. 158 and 178 so as to make them consistent with the legislative changes. The reason which persuaded the Courts to hold that the expression "under the Code" was deemed added to Art. 181 has now disappeared, but on that account the expression "applications for which no period of limitation is provided elsewhere in this Schedule" in Art. 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 1940. 5. If Art. 181 of the Limitation Act only governs applications under the Code of Civil Procedure for which no period of limitation is provided under the Schedule, an application under the Arbitration Act, 1940 not being an application under the Code of Civil Procedure, unless there is some provision, which by express enactment or plain intendment to the contrary in the Arbitration Act, will not be governed by that Article. 6. Counsel for the Union of India contended that S. 37 (1) of the Arbitration Act, 1940, indicates a contrary intention. That sub-section provides:"All the provisions of the Indian Limitation Act, 1908 shall apply to arbitration as they apply to proceedings in Court." In our judgment, this clause does not govern an application for filing an arbitration agreement under S. 20 of the Arbitration Act. In terms, it provides, that the provisions of the Indian Limitation Act are to apply to arbitrations as they apply to proceedings in Court. In other words, an arbitrator in dealing with a matter submitted to him is bound to apply the provisions of the Limitation Act: S. 37 (1) has no refer" once to an application under the Arbitration Act for effectuating a reference to the arbitrator, such as an application for filing an arbitration agreement. The genesis of this sub-section is to be found in the judgment of the Judicial Committee of the Privy Council in Ramdutt Ramkissendass v. E. D. Sassoon and Co., 56 Ind App 128: (AIR 1929 PC 103). In that case the Judicial Committee observed that even though S. 3 of the Limitation Act deals primarily with suits, appeals and applications made in law courts and makes no reference to arbitration proceedings and, therefore, the Limitation Act does not in terms apply to arbitrations in mercantile reference, it would be"an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every defence which would have been open in a Court of law can be equally proponed for the arbitrators decision unless the parties have agreed to exclude that defence. Were it otherwise, a claim for breach of a contract containing a reference clause could be brought at any time, it might be twenty or thirty years after the cause of action had arisen although the Legislature had prescribed a limit of three years for the enforcement of such a claim in any application that might be made to the law courts." In enacting the Arbitration Act, 1940 the Legislature incorporated, with some modification, the rule which was regarded by the Judicial Committee as implicit in a commercial reference under an arbitration agreement. The legislature provided that all the provisions of the Limitation Act, 1908 shall apply to arbitrations as they apply to proceedings in Court. 7. There is no doubt that Cl. (1) of S. 37 of the Arbitration Act deals only with the authority of the arbitrator to dead with and decide any dispute referred to him: it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But S. 37 (1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under S. 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose. In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation: that question falls within the province of the arbitrator to whom the dispute is referred.
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of 1947 for computation of benefit in terms of money and for a direction to the employers to pay the same. But in each case the decision of the Court proceeded upon the general ground that Art. 181 of the Limitation Act, 1908, governed applications under the Code of Civil Procedure. This Court impliedly rejected in each case the argument that merely because powers under the Code of Civil Procedure may be exercised by a Court entertaining an application, the application could not be deemed to be one under the Code. It is true that in the Limitation Act originally enacted in 1908, by the group of Arts. 158 to 180 only applications under the Code of Civil Procedure were dealt with.By the amendment made by the Arbitration Act 10 of 1940, Arts. 158 and 178 were modified and in the articles for the expression "under the Code of Civil Procedure, 1908" the words "under the Arbitration Act 1940" were substituted. The reason which persuaded the Courts from time to time to hold that the expression under the Code" must be deemed to be added in Art. 181 did not continue to apply after the amendment of Arts. 158 and 178. It may be recalled that the law relating to consensual arbitration, except in respect of cases governed by Arbitration Act, 1899, was enacted in Sch. II of the Code of Civil Procedure, 1908. By the enactment of Act 10 of 1940, Sch II of the Code of Civil Procedure and the Indian Arbitration Act, 1899, were repealed and an Act dealing with all arbitration was enacted, and it was found necessary on that account to amend Arts. 158 and 178 so as to make them consistent with the legislative changes. The reason which persuaded the Courts to hold that the expression "under the Code" was deemed added to Art. 181 has now disappeared, but on that account the expression "applications for which no period of limitation is provided elsewhere in this Schedule" in Art. 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 19405. If Art. 181 of the Limitation Act only governs applications under the Code of Civil Procedure for which no period of limitation is provided under the Schedule, an application under the Arbitration Act, 1940 not being an application under the Code of Civil Procedure, unless there is some provision, which by express enactment or plain intendment to the contrary in the Arbitration Act, will not be governed by that ArticleIn our judgment, this clause does not govern an application for filing an arbitration agreement under S. 20 of the Arbitration Act. In terms, it provides, that the provisions of the Indian Limitation Act are to apply to arbitrations as they apply to proceedings in Court. In other words, an arbitrator in dealing with a matter submitted to him is bound to apply the provisions of the Limitation Act: S. 37 (1) has no refer" once to an application under the Arbitration Act for effectuating a reference to the arbitrator, such as an application for filing an arbitration agreement. The genesis of this sub-section is to be found in the judgment of the Judicial Committee of the Privy Council in Ramdutt Ramkissendass v. E. D. Sassoon and Co., 56 Ind App 128: (AIR 1929 PC 103). In that case the Judicial Committee observed that even though S. 3 of the Limitation Act deals primarily with suits, appeals and applications made in law courts and makes no reference to arbitration proceedings and, therefore, the Limitation Act does not in terms apply to arbitrations in mercantile reference, it would beIn enacting the Arbitration Act, 1940 the Legislature incorporated, with some modification, the rule which was regarded by the Judicial Committee as implicit in a commercial reference under an arbitration agreement. The legislature provided that all the provisions of the Limitation Act, 1908 shall apply to arbitrations as they apply to proceedings in Court7. There is no doubt that Cl. (1) of S. 37 of the Arbitration Act deals only with the authority of the arbitrator to dead with and decide any dispute referred to him: it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But S. 37 (1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under S. 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose. In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation: that question falls within the province of the arbitrator to whom the dispute is referred3. The terms of Art. 181 are general, and are apparently not restricted to applications under the Code of Civil Procedure. But that Article is included in the group of articles which fall under the head "Third Division Applications". As originally enacted all applications contemplated to be made under Arts. 158 to 180, were applications made under the Code of Civil Procedure and there was a catena of authorities holding that in Art. 181 the expression under the Code of Civil Procedure" must be deemed to be necessarily implicit.
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Commnr. Of Income Tax, Ahmedabad Vs. Equinox Solution Pvt. Ltd | (hereinafter referred to as “the Act”).2) We herein set out the facts, in brief, to appreciate the issues involved in this appeal.3) The respondent-assessee was engaged in the business of manufacturing sheet metal components out of CRPA & OP sheds at Ahmadabad. The respondent decided to sell their entire running business in one go. With this aim in view, the respondent sold their entire running business in one go with all its assets and liabilities on 31.12.1990 to a Company called "Amtrex Appliances Ltd" for Rs.58,53,682/-.4) The respondent filed their income tax return for the Assessment Year 1991-1992. In the return, the respondent claimed deduction under Section 48 (2) of the Act as it stood then by treating the sale to be in the nature of "slump sale" of the going concern being in the nature of long term capital gain in the hands of the assessee.(5) The Assessing Officer by his order dated 04.03.1994 did not accept the contention of the assessee in claiming deduction. According to the Assessing Officer, the case of the assessee was covered under Section 50 (2) of the Act because it was in the nature of short term capital gain as specified in Section 50 (2) of the Act and hence did not fall under Section 48 (2) of the Act as claimed by the assessee. The Assessing Officer accordingly reworked the claim of the deduction treating the same to be falling under Section 50 (2) of the Act and framed the assessment order.(6) The assessee, felt aggrieved, filed appeal before the CIT (appeals). By order dated 06.10.1995, the Commissioner of Appeals allowed the assessee’s appeal in so far as it related to the issue of deduction. He held that when it is an undisputed fact that the assessee has sold their entire running business in one go with its assets and liabilities at a slump price and, therefore, the provisions of Section 50 (2) of the Act could not be applied to such sale. He held that it was not a case of sale of any individual or one block asset which may attract the provisions of Section 50 (2) of the Act. He then examined the case of the assessee in the context of definition of "long term capital gain" and "short term capital asset" and held that since the undertaking itself is a capital asset owned by the assessee nearly for six years and being in the nature of long term capital asset and the same having been sold in one go as a running concerned, it cannot be termed a “short terms capital gain” so as to attract the provisions of Section 50 (2) of the Act as was held by the Assessing Officer. The CIT (appeals) accordingly allowed the assessee to claim the deduction as was claimed by them before the Assessing Officer.7) The Revenue, felt aggrieved of the order of the CIT (appeal), filed appeal before the Income Tax Appellate Tribunal. By order dated 27.06.2002, the Tribunal concurred with the reasoning and the conclusion arrived at by the Commissioner of Appeal and accordingly dismissed the Revenues appeal.8) The Revenue, felt aggrieved of the order of the Tribunal, carried the matter to the High Court in further appeal under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal holding that the appeal does not involve any substantial question of law within the meaning of Section 260-A of the Act. It is against this order the Revenue felt aggrieved and carried the matter to this Court in appeal by way of special leave.9) Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Inder Paul Bansal, learned counsel for the respondent-assessee.10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered as “short-term capital assets”. In other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of a “long-term capital asset”. It was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437 CIT].14) In Premier Automobiles Ltd. vs. Income Tax Officer & Anr., 264 ITR 193 (Bombay) also, the Division Bench of the Bombay High Court examined this question in detail on somewhat similar facts and has taken the same view. The Learned Judge S.H Kapadia - (as His Lordship then was as Judge of the Bombay High Court and later became CJI) speaking for the Bench aptly explained the legal position to which we concur as it correctly summarized the legal position applicable to such facts.15) Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by the assesse’s counsel referred supra. | 0[ds]10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered asIn other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of aIt was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by thecounsel referred supra. | 0 | 1,219 | 331 | ### Instruction:
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(hereinafter referred to as “the Act”).2) We herein set out the facts, in brief, to appreciate the issues involved in this appeal.3) The respondent-assessee was engaged in the business of manufacturing sheet metal components out of CRPA & OP sheds at Ahmadabad. The respondent decided to sell their entire running business in one go. With this aim in view, the respondent sold their entire running business in one go with all its assets and liabilities on 31.12.1990 to a Company called "Amtrex Appliances Ltd" for Rs.58,53,682/-.4) The respondent filed their income tax return for the Assessment Year 1991-1992. In the return, the respondent claimed deduction under Section 48 (2) of the Act as it stood then by treating the sale to be in the nature of "slump sale" of the going concern being in the nature of long term capital gain in the hands of the assessee.(5) The Assessing Officer by his order dated 04.03.1994 did not accept the contention of the assessee in claiming deduction. According to the Assessing Officer, the case of the assessee was covered under Section 50 (2) of the Act because it was in the nature of short term capital gain as specified in Section 50 (2) of the Act and hence did not fall under Section 48 (2) of the Act as claimed by the assessee. The Assessing Officer accordingly reworked the claim of the deduction treating the same to be falling under Section 50 (2) of the Act and framed the assessment order.(6) The assessee, felt aggrieved, filed appeal before the CIT (appeals). By order dated 06.10.1995, the Commissioner of Appeals allowed the assessee’s appeal in so far as it related to the issue of deduction. He held that when it is an undisputed fact that the assessee has sold their entire running business in one go with its assets and liabilities at a slump price and, therefore, the provisions of Section 50 (2) of the Act could not be applied to such sale. He held that it was not a case of sale of any individual or one block asset which may attract the provisions of Section 50 (2) of the Act. He then examined the case of the assessee in the context of definition of "long term capital gain" and "short term capital asset" and held that since the undertaking itself is a capital asset owned by the assessee nearly for six years and being in the nature of long term capital asset and the same having been sold in one go as a running concerned, it cannot be termed a “short terms capital gain” so as to attract the provisions of Section 50 (2) of the Act as was held by the Assessing Officer. The CIT (appeals) accordingly allowed the assessee to claim the deduction as was claimed by them before the Assessing Officer.7) The Revenue, felt aggrieved of the order of the CIT (appeal), filed appeal before the Income Tax Appellate Tribunal. By order dated 27.06.2002, the Tribunal concurred with the reasoning and the conclusion arrived at by the Commissioner of Appeal and accordingly dismissed the Revenues appeal.8) The Revenue, felt aggrieved of the order of the Tribunal, carried the matter to the High Court in further appeal under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal holding that the appeal does not involve any substantial question of law within the meaning of Section 260-A of the Act. It is against this order the Revenue felt aggrieved and carried the matter to this Court in appeal by way of special leave.9) Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Inder Paul Bansal, learned counsel for the respondent-assessee.10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered as “short-term capital assets”. In other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of a “long-term capital asset”. It was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437 CIT].14) In Premier Automobiles Ltd. vs. Income Tax Officer & Anr., 264 ITR 193 (Bombay) also, the Division Bench of the Bombay High Court examined this question in detail on somewhat similar facts and has taken the same view. The Learned Judge S.H Kapadia - (as His Lordship then was as Judge of the Bombay High Court and later became CJI) speaking for the Bench aptly explained the legal position to which we concur as it correctly summarized the legal position applicable to such facts.15) Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by the assesse’s counsel referred supra.
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10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered asIn other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of aIt was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by thecounsel referred supra.
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The Bharatkhand Textile Mfg. Co. Ltd.& Others Vs. The Textile Labour Association,Ahmedabad | the industry. It has been strenuously argued before us that in assessing the extent of the liabilities the actual liabilities accrued as the result of the scheme has not been taken into account and the serious strain imposed on the industry by the imposition of excise duty has also been overlooked; on the other hand, undue importance has been attached to bonus shares and no account has been taken of the industrys obligation to contribute to the State Insurance Scheme. We are not impressed by these arguments. The argument about the actual liability accured is really theoretical and cannot have much practical significance.If it is suggested that in framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued, then gratuity schemes can be very rarely framed. Such schemes are long-term schemes and a fund to cover the total liability in that behalf must inevitably be built up in course of time year by year.In regard to the excise duty the industrial court has rightly pointed out that the imposition of a higher duty was the consequence of the excessive increase in prices of mill cloth and in fact it was levied "to mop off those extra profits". When the prices fall down it is not unlikely that the excise duty may be reduced.In any case the obligation to pay excise duty or to contribute to the insurance scheme, though perhaps relevant, may not have a material bearing on the framing of the scheme of gratuity.Then, as to the bonus shares, it is not right to contend that the industrial court has attributed undue importance to them. All that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post-war period is an index to the prosperity enjoyed by the cotton textile industry in Ahmedabad. In our opinion, no criticism can be made against this statement. In this connection it may perhaps be pertinent to observe that the statutory ceiling placed on the agents commission may in the due course assist the mills to some extent in meeting their liability under the scheme.22. The last argument urged against the validity of the scheme is based on the assumption that in working out the preliminary figures before framing the scheme the industrial court has committed an error. What the industrial court has done is to take the information collected by the Association on the earlier occasion, to compare it with the statement prepared by the respondent, and to make a rough estimate about the extent of the industrys liability under the scheme. In considering these statements it is important to emphasis that the Associations calculations have been made not on the basis of basic pay but on the basis of pay including dearness allowance, and that naturally has made considerable additions to the amounts involved. The scheme framed is by reference to the basic wages. This position is not disputed. The other material point which deserves to be mentioned is that the calculations made by the Association proceed on the assumption that most of the employees would seek to retire from employment as soon as they complete fifteen years; service. Such an assumption seems to us to be not warranted at all. It is common ground that employees generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60. On an average each employee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he completes 15 years of service. In the absence of better employment in Ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation. The figures collated are in respect of the years 1953, 1954 and 1955. They are collated in seven different columns, and ultimately the percentages of persons who retired during the three respective years are worked out as at 3.13%, 4.13% and 3.84%. The industrial court has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the Association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity. It also appears that the retired workmen included a number of employees who voluntarily resigned because they had not completed 15 years of service and were not entitled to gratuity. It is on a consideration of all the relevant facts that the industrial court came to the conclusion that the number of persons who would have been entitled to gratuity under a normal gratuity scheme would probably not have exceeded 2% of the labour force. If it is assumed, as we think it can be safely assumed, that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial court cannot be said to be erroneous. Even so the scheme framed by the industrial court has provided, inter alia, one months basic wage for each completed year of service for the period before the coming into force of the Employees Provident Funds Act, 1952, and half-a-months basic wage for each completed year of service thereafter, subject to a maximum of 15 months basic wages to be paid to the employee or his heirs or executors or nominees as the case may be. This provision which amounts to a departure from the Bombay scheme of gratuity brings out that fact that the provisions made by the Employees Provident Funds Act have been duly taken into account by the industrial court. We are, therefore, satisfied that the scheme framed by the industrial court does not suffer from any infirmities as alleged by the appellants. | 0[ds]It is common ground that the modification permissible under S. 116A does not mean that the provisions of the award must always be reduced; it may mean even increasing the provisions, and so it is urged by the respondent that the word "modification" should receive a wider denotation in the context of S. 116A. This construction no doubt receives some support from the provision of S. 116A that a party may apply for the modification of the award instead of giving notice for its termination; and the latter clause tends to show that the procedure prescribed by S. 116A is an alternative to the procedure prescribed by S.The industrial court was apparently inclined to put a wider denotation on the word "modification" used in S. 116A.10. We do not think it is necessary to decide this large question of the construction of S. 116A because, in our opinion, in the present case, even if the limited and narrow construction suggested by the appellant is put on the word "modification", the respondents application cannot be said to be outside the purview of the said section. There is no doubt that the claim for gratuity made by the respondent in the earlier proceedings has been rejected by the industrial court and that is an award; but, whether or not the present application seeks for a modification of the said award within the meaning of S. 116A would depend on what the industrial court had decided on the earlier occasion. It is clear that the industrial court did not then consider the merits of the claim at all. It upheld the Associations contention that the matter should not be decided then but may be considered later in view of the fact that the Employees Provident Funds Act had already been passed and the statutory scheme for provident funds was about to come into force.It was on this ground alone that the industrial court rejected the claim as it was then made but it took the precaution of expressly adding that after the introduction of the provident funds scheme it would be open to the respondent or the Association to make a fresh application for the institution of a gratuity fund as it may deem expedient to claim.It would not be unreasonable, we think, to assume that when liberty was thus reserved to the parties to make a fresh application the industrial court had presumably S. 116A in mind. In substance, the effect of the order then passed was that the application was regarded as premature and liberty was reserved to the parties to renew the application if the statutory scheme was thought to be insufficient or unsatisfactory by either of them.In such a case, if the respondent applies to the industrial court for modification of its award it is difficult to accept the argument that the respondent seeks to alter the framework of the award or to change any principle decided in the award. The true position is that by the present application the respondent is asking the court to consider the demand now that the scheme has come into force and is, according to the respondent, insufficient to meet the workmens grievance. What the industrial court then promised to consider after the scheme came into force is brought before it for its decision again. That being the true nature of the award and the true scope of the prayer made by the respondent in its present application it is difficult to hold that the application is incompetent under S.have already referred to the items covered in the earlier proceedings as well as those which are the subject-matter of the present application. It is true that the notice served by the respondent prior to the earlier reference specifically set out the claim for gratuity in four categories of cases of termination of services of the employees, whereas in the present proceedings some other categories are included. The objection raised against the competence of the present application purports to treat the earlier notice in a very technical way and confines the subsequent proceedings taken before the industrial court to the said four categories only.There is no doubt that disputes in regard to industrial matters not covered by an award do not fall within the scope of S. 116 of theis difficult to answer this question in the affirmative.It is well known that a scheme for gratuity is an integrated scheme and it covers all classes of termination of service in which gratuity benefit can be legitimately claimed. Therefore, when the industrial court refused to frame a gratuity scheme in regard to the four categories brought before it on the earlier occasion, in substance its refusal amounted to a rejection of any scheme for gratuity at all; otherwise it is very difficult to assume that having rejected the claim for gratuity in respect of the said four categories it would still have entertained a claim for gratuity on behalf of other categories not included therein. That is why we are inclined to think that though in form the rejection of the demand for gratuity on the earlier occasion was in regard to the four categories specified in the notice, in effect it was rejection in regard to the claim for a gratuity scheme itself.13. It cannot be dispute that if the earlier demand had been for a gratuity scheme pure and simple and no categories had been specified in connection therewith the present application for the modification of the award coupled with a claim for a gratuity scheme in respect of all the categories specified in the application would be within the purview of S. 116 of the Act. That in substance is what was happened in this case according to the finding of the industrial court on this point, and having regard to the unusual circumstances of this case we see no reason to interfere withprovident fund guaranteed by the statute under the statutory scheme is one kind of retirement benefit and since this retirement benefit is now available to the workmen it was not open to the industrial court to provide an additional gratuity scheme; that in substance is theEmployees Provident Funds Act has no doubt been passed for the institution of provident funds for employees covered by it; and the statutory scheme for provident funds is intended to afford to the employees some sort of a retirement benefit; but it cannot be ignored that what the statute has prescribed in the scheme is the minimum to which, according to the Legislature, the employees are entitled; and so in all cases where the industrial courts are satisfied that a larger and higher benefit can be afforded to the employees no bar can be pleaded by virtue of the Provident Funds Act. It is true that after the Act came into force, the industrial courts would undoubtedly have to bear in mind the benefit of the statutory scheme to which the employees may be entitled; and it is only after bearing that factor in mind and making due allowance for it that any additional scheme for gratuity can and must be framed by them; but it is not open to an employer to contend that the Act excludes the jurisdiction of industrial courts to frame an additionalmust accordingly hold that the Industrial Court was right in rejecting the appellants contention that the statutory provision for provident fund under the Employees Provident Funds Act is a bar to the present claim for a gratuityis not disputed that the benefit of gratuity is in the nature of retrial benefit and there can be no doubt that before framing a scheme for gratuity industrial adjudication has to take into account several relevant facts; the financial condition of the employer, his profit-making capacity, the profits earned by him in the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuityour present purpose it is really not necessary to embark upon the academic question as to whether gratuity is a part of deferred wage or not; we will assume that it is not.Even so it would not be reasonable to assimilate the character of the scheme for gratuity to that of a profit bonus and to seek to import the considerations of the Full Bench formula which governs the grant of bonus. A claim for profit bonus is based on the assumption that the employees contribute at least partially to the profits made by the employer and that they are entitled to ask for a share in the said profits in order to bridge the gulf between the waged actually receive by them and a living wage to which they are ultimately entitled. A claim for gratuity is a claim for retrial benefit and it is strictly not a claim to receive a share of the profits at all; and so there would be no scope for importing the several considerations which are relevant in determining the claim for profitwe are not prepared to accept the argument that the claim for gratuity is essentially similar to a claim for profit bonus, and like profit bonus it must always be considered on unit-wise basis. Incidentally we may add that even a claim for profit bonus can and often is settled on industry-wisemay be conceded that when an industry-wise basis is adopted in dealing with a claim like gratuity often enough stronger units of the industry get a benefit while the weaker units suffer athe present economic development of our country we think industrial adjudication would hesitate to adopt an all-India basis for the decision of an industrial dispute like that of gratuity and so, on principle, it would be difficult to take exception to the approach adopted by the industrial court in dealing with the presentwould no doubt have been open to the industrial court to deal with the dispute unit-wise just as it was open to the court to deal with it on an industry-wise basis. As we have already indicated there are several factors in favour of adopting the latter approach though it may be conceded that by adopting the said course some hardship may conceivably be caused to the weakest units in the industry.Having carefully considered this question in all its aspects we are, however, not prepared to hold that the scheme of gratuity under appeal should be set aside on the ground that the industrial court ought to have adopted a unit-wise approach.In this connection it may not be out of place to observe that the cotton textile industry is the premier industry of our country and there is a concentration of a large number of mills in Ahmedabad. A good many of them have capitalised large portions of reserves and documents produced in the present proceedings show that the production has steadily increased and has found a responsive market. There is a gratuity scheme framed on an industry-wise basis in operation in Bombay and a similar scheme appears to have been extended to Nadiad and Khandesh. In fact an award for gratuity has been made on an industry-wise basis even in respect of the textile industry at Coimbatore. Having regard to these facts we think the industrial court was right in observing that "there was no justification why an important textile centre like Ahmedabad should not have a gratuity scheme when the needs of the labour require it and the industry can afford it".20. It is true that in dealing with industrial disputes on industry-cum-region basis, if the region covers the whole of the country industrial adjudication sometimes takes resort to the classification of the constituent units of the industry in question. Industrial adjudication in regard to the fixation of wage-structure in respect of newspapers and banks in the country is an illustration in point. The need for such a classification is not as great when the region happens to be limited in area, though, even in respect of a limited area, in proper case industrial adjudication may adopt the course of classification. In the present case the industrial court took the view that classification was not possible and would be inexpedient. No classification was made in dealing with the textile mills in Bombay, and the industrial court did not feel called upon to make a departure in respect of Ahmedabad. We do not think that this conclusion suffers from anyare not impressed by these arguments. The argument about the actual liability accured is really theoretical and cannot have much practical significance.If it is suggested that in framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued, then gratuity schemes can be very rarely framed. Such schemes are long-term schemes and a fund to cover the total liability in that behalf must inevitably be built up in course of time year by year.In regard to the excise duty the industrial court has rightly pointed out that the imposition of a higher duty was the consequence of the excessive increase in prices of mill cloth and in fact it was levied "to mop off those extra profits". When the prices fall down it is not unlikely that the excise duty may be reduced.In any case the obligation to pay excise duty or to contribute to the insurance scheme, though perhaps relevant, may not have a material bearing on the framing of the scheme of gratuity.Then, as to the bonus shares, it is not right to contend that the industrial court has attributed undue importance to them. All that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post-war period is an index to the prosperity enjoyed by the cotton textile industry in Ahmedabad. In our opinion, no criticism can be made against this statement. In this connection it may perhaps be pertinent to observe that the statutory ceiling placed on the agents commission may in the due course assist the mills to some extent in meeting their liability under the scheme.The scheme framed is by reference to the basic wages. This position is not disputed. The other material point which deserves to be mentioned is that the calculations made by the Association proceed on the assumption that most of the employees would seek to retire from employment as soon as they complete fifteen years; service. Such an assumption seems to us to be not warranted at all. It is common ground that employees generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60. On an average each employee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he completes 15 years of service. In the absence of better employment in Ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation. The figures collated are in respect of the years 1953, 1954 and 1955. They are collated in seven different columns, and ultimately the percentages of persons who retired during the three respective years are worked out as at 3.13%, 4.13% and 3.84%. The industrial court has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the Association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity. It also appears that the retired workmen included a number of employees who voluntarily resigned because they had not completed 15 years of service and were not entitled to gratuity. It is on a consideration of all the relevant facts that the industrial court came to the conclusion that the number of persons who would have been entitled to gratuity under a normal gratuity scheme would probably not have exceeded 2% of the labour force. If it is assumed, as we think it can be safely assumed, that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial court cannot be said to be erroneous. Even so the scheme framed by the industrial court has provided, inter alia, one months basic wage for each completed year of service for the period before the coming into force of the Employees Provident Funds Act, 1952, and half-a-months basic wage for each completed year of service thereafter, subject to a maximum of 15 months basic wages to be paid to the employee or his heirs or executors or nominees as the case may be. This provision which amounts to a departure from the Bombay scheme of gratuity brings out that fact that the provisions made by the Employees Provident Funds Act have been duly taken into account by the industrial court. We are, therefore, satisfied that the scheme framed by the industrial court does not suffer from any infirmities as alleged by the appellants. | 0 | 7,707 | 3,026 | ### Instruction:
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the industry. It has been strenuously argued before us that in assessing the extent of the liabilities the actual liabilities accrued as the result of the scheme has not been taken into account and the serious strain imposed on the industry by the imposition of excise duty has also been overlooked; on the other hand, undue importance has been attached to bonus shares and no account has been taken of the industrys obligation to contribute to the State Insurance Scheme. We are not impressed by these arguments. The argument about the actual liability accured is really theoretical and cannot have much practical significance.If it is suggested that in framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued, then gratuity schemes can be very rarely framed. Such schemes are long-term schemes and a fund to cover the total liability in that behalf must inevitably be built up in course of time year by year.In regard to the excise duty the industrial court has rightly pointed out that the imposition of a higher duty was the consequence of the excessive increase in prices of mill cloth and in fact it was levied "to mop off those extra profits". When the prices fall down it is not unlikely that the excise duty may be reduced.In any case the obligation to pay excise duty or to contribute to the insurance scheme, though perhaps relevant, may not have a material bearing on the framing of the scheme of gratuity.Then, as to the bonus shares, it is not right to contend that the industrial court has attributed undue importance to them. All that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post-war period is an index to the prosperity enjoyed by the cotton textile industry in Ahmedabad. In our opinion, no criticism can be made against this statement. In this connection it may perhaps be pertinent to observe that the statutory ceiling placed on the agents commission may in the due course assist the mills to some extent in meeting their liability under the scheme.22. The last argument urged against the validity of the scheme is based on the assumption that in working out the preliminary figures before framing the scheme the industrial court has committed an error. What the industrial court has done is to take the information collected by the Association on the earlier occasion, to compare it with the statement prepared by the respondent, and to make a rough estimate about the extent of the industrys liability under the scheme. In considering these statements it is important to emphasis that the Associations calculations have been made not on the basis of basic pay but on the basis of pay including dearness allowance, and that naturally has made considerable additions to the amounts involved. The scheme framed is by reference to the basic wages. This position is not disputed. The other material point which deserves to be mentioned is that the calculations made by the Association proceed on the assumption that most of the employees would seek to retire from employment as soon as they complete fifteen years; service. Such an assumption seems to us to be not warranted at all. It is common ground that employees generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60. On an average each employee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he completes 15 years of service. In the absence of better employment in Ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation. The figures collated are in respect of the years 1953, 1954 and 1955. They are collated in seven different columns, and ultimately the percentages of persons who retired during the three respective years are worked out as at 3.13%, 4.13% and 3.84%. The industrial court has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the Association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity. It also appears that the retired workmen included a number of employees who voluntarily resigned because they had not completed 15 years of service and were not entitled to gratuity. It is on a consideration of all the relevant facts that the industrial court came to the conclusion that the number of persons who would have been entitled to gratuity under a normal gratuity scheme would probably not have exceeded 2% of the labour force. If it is assumed, as we think it can be safely assumed, that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial court cannot be said to be erroneous. Even so the scheme framed by the industrial court has provided, inter alia, one months basic wage for each completed year of service for the period before the coming into force of the Employees Provident Funds Act, 1952, and half-a-months basic wage for each completed year of service thereafter, subject to a maximum of 15 months basic wages to be paid to the employee or his heirs or executors or nominees as the case may be. This provision which amounts to a departure from the Bombay scheme of gratuity brings out that fact that the provisions made by the Employees Provident Funds Act have been duly taken into account by the industrial court. We are, therefore, satisfied that the scheme framed by the industrial court does not suffer from any infirmities as alleged by the appellants.
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Coimbatore. Having regard to these facts we think the industrial court was right in observing that "there was no justification why an important textile centre like Ahmedabad should not have a gratuity scheme when the needs of the labour require it and the industry can afford it".20. It is true that in dealing with industrial disputes on industry-cum-region basis, if the region covers the whole of the country industrial adjudication sometimes takes resort to the classification of the constituent units of the industry in question. Industrial adjudication in regard to the fixation of wage-structure in respect of newspapers and banks in the country is an illustration in point. The need for such a classification is not as great when the region happens to be limited in area, though, even in respect of a limited area, in proper case industrial adjudication may adopt the course of classification. In the present case the industrial court took the view that classification was not possible and would be inexpedient. No classification was made in dealing with the textile mills in Bombay, and the industrial court did not feel called upon to make a departure in respect of Ahmedabad. We do not think that this conclusion suffers from anyare not impressed by these arguments. The argument about the actual liability accured is really theoretical and cannot have much practical significance.If it is suggested that in framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued, then gratuity schemes can be very rarely framed. Such schemes are long-term schemes and a fund to cover the total liability in that behalf must inevitably be built up in course of time year by year.In regard to the excise duty the industrial court has rightly pointed out that the imposition of a higher duty was the consequence of the excessive increase in prices of mill cloth and in fact it was levied "to mop off those extra profits". When the prices fall down it is not unlikely that the excise duty may be reduced.In any case the obligation to pay excise duty or to contribute to the insurance scheme, though perhaps relevant, may not have a material bearing on the framing of the scheme of gratuity.Then, as to the bonus shares, it is not right to contend that the industrial court has attributed undue importance to them. All that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post-war period is an index to the prosperity enjoyed by the cotton textile industry in Ahmedabad. In our opinion, no criticism can be made against this statement. In this connection it may perhaps be pertinent to observe that the statutory ceiling placed on the agents commission may in the due course assist the mills to some extent in meeting their liability under the scheme.The scheme framed is by reference to the basic wages. This position is not disputed. The other material point which deserves to be mentioned is that the calculations made by the Association proceed on the assumption that most of the employees would seek to retire from employment as soon as they complete fifteen years; service. Such an assumption seems to us to be not warranted at all. It is common ground that employees generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60. On an average each employee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he completes 15 years of service. In the absence of better employment in Ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation. The figures collated are in respect of the years 1953, 1954 and 1955. They are collated in seven different columns, and ultimately the percentages of persons who retired during the three respective years are worked out as at 3.13%, 4.13% and 3.84%. The industrial court has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the Association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity. It also appears that the retired workmen included a number of employees who voluntarily resigned because they had not completed 15 years of service and were not entitled to gratuity. It is on a consideration of all the relevant facts that the industrial court came to the conclusion that the number of persons who would have been entitled to gratuity under a normal gratuity scheme would probably not have exceeded 2% of the labour force. If it is assumed, as we think it can be safely assumed, that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial court cannot be said to be erroneous. Even so the scheme framed by the industrial court has provided, inter alia, one months basic wage for each completed year of service for the period before the coming into force of the Employees Provident Funds Act, 1952, and half-a-months basic wage for each completed year of service thereafter, subject to a maximum of 15 months basic wages to be paid to the employee or his heirs or executors or nominees as the case may be. This provision which amounts to a departure from the Bombay scheme of gratuity brings out that fact that the provisions made by the Employees Provident Funds Act have been duly taken into account by the industrial court. We are, therefore, satisfied that the scheme framed by the industrial court does not suffer from any infirmities as alleged by the appellants.
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The East India Industries (Madras) Private Ltd.,Madras & A Vs. The Commissioner Of Income Tax, Madras | in its opinion such an exercise would be conducive to the attainment of the so called primary object which, from a practical point of view, means that it can exercise them whenever it is minded to do so, and whether such exercise is in fact conducive to the attainment of that object or not, as neither the Court nor any one else can control the companys opinion, or otherwise interfere with the manner in which it chooses to carry out its objects. It would be difficult in any case to determine whether any particular enterprise undertaken by the company under its wide powers was or was not in fact conducive to the attainment of the primary object, but when the question of whether it is or is not so conducive is left to the decision of the company itself, I cannot avoid the conclusion that the objects mentioned in sub-cls.(2) to (22) can be carried out by the company just as freely as the object mentioned in sub-cl. (1) and that there is no substantial difference in degree between them."As we have already stated, on a proper interpretation of the terms of the trust deed in the present case we are satisfied that Paragraph 2 (d) is not subsidiary in character to Para. 2 (c) and the trustees have been expressly granted the discretion to apply the income of the trust wholly to a non-charitable object to the exclusion of charitable objects. It follows, therefore, that in view of the absolute power of selection granted to the trustees to select between charitable and non-charitable objects, the provisions of Section 4 (3) (i) of the Act cannot be applied to the Agastyar trust and no exemption can be granted to the assessee under S. 15-B of the Act. We accordingly hold that the High Court rightly answered the question of law against the assessee and in favour of the Commissioner of Income-tax.7. It was, however, contended by Mr. Swaminathan on behalf of the assessee that the High Court had no jurisdiction to go into the question whether the Agastyar Trust was held for a wholly religious or charitable purpose under S. 4 (3) (i) of the Act. It was pointed out that the only question of law arising from the order of the Tribunal was with respect to the examination of the eligibility of the Agastyar Trust for exemption under S. 4 (3) (i) (b) of the Act. It was contended that the scope of the appeal from the order of the Tribunal was confined to the question whether the income from the business owned by the trust was entitled to exemption under S. 4 (3) (i) (b) of the Act and whether the conditions of that proviso were satisfied. It was submitted that the High Court acted in excess of jurisdiction in raising, a new question which was not raised by the Appellate Tribunal namely, whether the trust itself was constituted for wholly religions or charitable purposes within the meaning, of S. 4 (3) (i) of the Act. We are unable to accept the argument put forward on behalf of the appellants as correct. It appears that before the Appellate Tribunal there was no detailed examination of the question of law. The Tribunal merely referred to an earlier case it had dealt with regarding the same assessee. The Tribunal apparently took the view in the earlier case that even if the income which the trust earned in business was not exempt from tax the income derived from donations which was utilised for charitable purposes would be eligible for exemption. So far as the assessment for the year 1955-56 is concerned the question was not considered by the Appellate Tribunal at any length. But the In come-tax Officer held that the trust did not fulfil the conditions laid down by S. 15-B of the Act. The Assistant Commissioner, however, in appeal specifically stated that one of the conditions was that the income of the institution or fund should be exempt under Cl. (1)of sub-s. (3) of S. 4 and dealt with the argument relating to the business carried on by the trust and observed:"Property as used in S. 4 (3) (i) includes business also and unless the business also is exempt, donation to such an institution will not be eligible for concession given in S. 15-B."The question, therefore, before the Tribunal was whether the trust income was exempt under S. 4 (3) (i) of the Act. In the course of its order, dated July 27, 1957 for the assessment year 1955-56 the Appellate Tribunal stated as follows :-"With reference to the first contention, we have held in I.T.A. No. 5707 of 1955-56 that the Agastyar Trust was a public trust and hence any donation made to the said trust is an allowable concession under Section l5-B. Therefore, the claim, of the assessee is allowed on this contention."We are, therefore, unable to accept the contention of the appellants that the question whether S. 4 (3) (i) of the Act applies to the Agastyar Trust was not within the scope of the question referred to the High Court by the Appellate Tribunal or that the High Court went beyond its jurisdiction in answering that question. In Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 : (AIR 1961 SC 1633 ), this Court examined the scope of the jurisdiction of the High Court in a reference under S. 66 (1) and it was pointed out that even where a question of law was not raised before the Tribunal but the Tribunal deals with it, it must be deemed to be one arising out of its order. Applying the principle to the present case, we hold that the High Court was within its jurisdiction in examining the question whether the Agastyar Trust was eligible for exemption from income-tax under S. 4 (3) (i) of the Act. We accordingly reject the argument of the appellants on this aspect of the case. | 0[ds]In the present case, it appears from the deed of trust that one of the objects of the trust, namely Item 4, is not for charitable or religious purposes. Item No. 4 is "to manufacture, buy, sell and distribute pharmaceutical, medicinal, chemical and other preparations and articles such as medicines, drugs, medical and surgical articles, preparations and restoratives of food". It may be that most of the other objects of the trust are religious and charitable in nature but if Item 4 is not charitable, then the conditions envisaged by S. 4 (3) (i) of the Act are not fulfilled and the exemption conferred by S. 15-B of the act cannot be applied. Clause 5 (i) of the trust deed states that "the trustee shall have power to apply the whole or any part of the trust property or fund whether capital or income in or towards payment of the expenses of the trust or for or towards all or any of the purposes of the trust provided any property or money held in specia1 trust shal1 be applied only for that purpose and not otherwise". In the present case, there is no special trust, that is to say, no particular item of property has been burdened with the performance of any specific object of the trust.It is, therefore, manifest that under Cl. 5 (i) of the trust deed it is open to the trustees to utilise the income for any one of the objects of the trust to the exclusion of all other objects. In other words, it would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations In our opinion, this particular object of the trust is neither charitable nor religious inare unable to hold that there is any connection between the two objects of the trust and upon an interpretation of the document taken as a whole, it is impossible to accept the appellants contention that Cl. 2(c) is the dominant object of the trust and Cl. 2 (d) is a subsidiary object. The argument of the appellants is, in fact, contradictory of the last clause of Para. 2 of the trust deed which states that the objects shall be independent of each other, notwithstanding that any of the objects shall be void for any reason whatsoever , the trust shall be valid and operative with respect to the otherregard to the language of Para. 2 of the trust deed in the context of other paragraphs of the document, we are of opinion that the trust deed, on a proper interpretation, gives an absolute power of selection to the trustees to choose between charitable and non-charitable objects of the trust for spending the entire income of the trust properties. It follows that the Agastyar trust does not fulfil the conditions imposed by S. 4 (3) (i) of the Act and the donation made by the assessee to the Agastyar trust cannot, therefore. be exempted under S. 15-B of theare unable to accept the argument put forward on behalf of the appellants as correct. It appears that before the Appellate Tribunal there was no detailed examination of the question of law. The Tribunal merely referred to an earlier case it had dealt with regarding the same assessee. The Tribunal apparently took the view in the earlier case that even if the income which the trust earned in business was not exempt from tax the income derived from donations which was utilised for charitable purposes would be eligible for exemption. So far as the assessment for the year 1955-56 is concerned the question was not considered by the Appellate Tribunal at any length. But the In come-tax Officer held that the trust did not fulfil the conditions laid down by S. 15-B of theare, therefore, unable to accept the contention of the appellants that the question whether S. 4 (3) (i) of the Act applies to the Agastyar Trust was not within the scope of the question referred to the High Court by the Appellate Tribunal or that the High Court went beyond its jurisdiction in answering that question. In Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 : (AIR 1961 SC 1633 ), this Court examined the scope of the jurisdiction of the High Court in a reference under S. 66 (1) and it was pointed out that even where a question of law was not raised before the Tribunal but the Tribunal deals with it, it must be deemed to be one arising out of its order. Applying the principle to the present case, we hold that the High Court was within its jurisdiction in examining the question whether the Agastyar Trust was eligible for exemption from income-tax under S. 4 (3) (i) of the Act. We accordingly reject the argument of the appellants on this aspect of thewe have already stated, on a proper interpretation of the terms of the trust deed in the present case we are satisfied that Paragraph 2 (d) is not subsidiary in character to Para. 2 (c) and the trustees have been expressly granted the discretion to apply the income of the trust wholly to aobject to the exclusion of charitable objects. It follows, therefore, that in view of the absolute power of selection granted to the trustees to select between charitable andobjects, the provisions of Section 4 (3) (i) of the Act cannot be applied to the Agastyar trust and no exemption can be granted to the assessee under S.of the Act. We accordingly hold that the High Court rightly answered the question of law against the assessee and in favour of the Commissioner of | 0 | 3,801 | 1,074 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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in its opinion such an exercise would be conducive to the attainment of the so called primary object which, from a practical point of view, means that it can exercise them whenever it is minded to do so, and whether such exercise is in fact conducive to the attainment of that object or not, as neither the Court nor any one else can control the companys opinion, or otherwise interfere with the manner in which it chooses to carry out its objects. It would be difficult in any case to determine whether any particular enterprise undertaken by the company under its wide powers was or was not in fact conducive to the attainment of the primary object, but when the question of whether it is or is not so conducive is left to the decision of the company itself, I cannot avoid the conclusion that the objects mentioned in sub-cls.(2) to (22) can be carried out by the company just as freely as the object mentioned in sub-cl. (1) and that there is no substantial difference in degree between them."As we have already stated, on a proper interpretation of the terms of the trust deed in the present case we are satisfied that Paragraph 2 (d) is not subsidiary in character to Para. 2 (c) and the trustees have been expressly granted the discretion to apply the income of the trust wholly to a non-charitable object to the exclusion of charitable objects. It follows, therefore, that in view of the absolute power of selection granted to the trustees to select between charitable and non-charitable objects, the provisions of Section 4 (3) (i) of the Act cannot be applied to the Agastyar trust and no exemption can be granted to the assessee under S. 15-B of the Act. We accordingly hold that the High Court rightly answered the question of law against the assessee and in favour of the Commissioner of Income-tax.7. It was, however, contended by Mr. Swaminathan on behalf of the assessee that the High Court had no jurisdiction to go into the question whether the Agastyar Trust was held for a wholly religious or charitable purpose under S. 4 (3) (i) of the Act. It was pointed out that the only question of law arising from the order of the Tribunal was with respect to the examination of the eligibility of the Agastyar Trust for exemption under S. 4 (3) (i) (b) of the Act. It was contended that the scope of the appeal from the order of the Tribunal was confined to the question whether the income from the business owned by the trust was entitled to exemption under S. 4 (3) (i) (b) of the Act and whether the conditions of that proviso were satisfied. It was submitted that the High Court acted in excess of jurisdiction in raising, a new question which was not raised by the Appellate Tribunal namely, whether the trust itself was constituted for wholly religions or charitable purposes within the meaning, of S. 4 (3) (i) of the Act. We are unable to accept the argument put forward on behalf of the appellants as correct. It appears that before the Appellate Tribunal there was no detailed examination of the question of law. The Tribunal merely referred to an earlier case it had dealt with regarding the same assessee. The Tribunal apparently took the view in the earlier case that even if the income which the trust earned in business was not exempt from tax the income derived from donations which was utilised for charitable purposes would be eligible for exemption. So far as the assessment for the year 1955-56 is concerned the question was not considered by the Appellate Tribunal at any length. But the In come-tax Officer held that the trust did not fulfil the conditions laid down by S. 15-B of the Act. The Assistant Commissioner, however, in appeal specifically stated that one of the conditions was that the income of the institution or fund should be exempt under Cl. (1)of sub-s. (3) of S. 4 and dealt with the argument relating to the business carried on by the trust and observed:"Property as used in S. 4 (3) (i) includes business also and unless the business also is exempt, donation to such an institution will not be eligible for concession given in S. 15-B."The question, therefore, before the Tribunal was whether the trust income was exempt under S. 4 (3) (i) of the Act. In the course of its order, dated July 27, 1957 for the assessment year 1955-56 the Appellate Tribunal stated as follows :-"With reference to the first contention, we have held in I.T.A. No. 5707 of 1955-56 that the Agastyar Trust was a public trust and hence any donation made to the said trust is an allowable concession under Section l5-B. Therefore, the claim, of the assessee is allowed on this contention."We are, therefore, unable to accept the contention of the appellants that the question whether S. 4 (3) (i) of the Act applies to the Agastyar Trust was not within the scope of the question referred to the High Court by the Appellate Tribunal or that the High Court went beyond its jurisdiction in answering that question. In Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 : (AIR 1961 SC 1633 ), this Court examined the scope of the jurisdiction of the High Court in a reference under S. 66 (1) and it was pointed out that even where a question of law was not raised before the Tribunal but the Tribunal deals with it, it must be deemed to be one arising out of its order. Applying the principle to the present case, we hold that the High Court was within its jurisdiction in examining the question whether the Agastyar Trust was eligible for exemption from income-tax under S. 4 (3) (i) of the Act. We accordingly reject the argument of the appellants on this aspect of the case.
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In the present case, it appears from the deed of trust that one of the objects of the trust, namely Item 4, is not for charitable or religious purposes. Item No. 4 is "to manufacture, buy, sell and distribute pharmaceutical, medicinal, chemical and other preparations and articles such as medicines, drugs, medical and surgical articles, preparations and restoratives of food". It may be that most of the other objects of the trust are religious and charitable in nature but if Item 4 is not charitable, then the conditions envisaged by S. 4 (3) (i) of the Act are not fulfilled and the exemption conferred by S. 15-B of the act cannot be applied. Clause 5 (i) of the trust deed states that "the trustee shall have power to apply the whole or any part of the trust property or fund whether capital or income in or towards payment of the expenses of the trust or for or towards all or any of the purposes of the trust provided any property or money held in specia1 trust shal1 be applied only for that purpose and not otherwise". In the present case, there is no special trust, that is to say, no particular item of property has been burdened with the performance of any specific object of the trust.It is, therefore, manifest that under Cl. 5 (i) of the trust deed it is open to the trustees to utilise the income for any one of the objects of the trust to the exclusion of all other objects. In other words, it would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations In our opinion, this particular object of the trust is neither charitable nor religious inare unable to hold that there is any connection between the two objects of the trust and upon an interpretation of the document taken as a whole, it is impossible to accept the appellants contention that Cl. 2(c) is the dominant object of the trust and Cl. 2 (d) is a subsidiary object. The argument of the appellants is, in fact, contradictory of the last clause of Para. 2 of the trust deed which states that the objects shall be independent of each other, notwithstanding that any of the objects shall be void for any reason whatsoever , the trust shall be valid and operative with respect to the otherregard to the language of Para. 2 of the trust deed in the context of other paragraphs of the document, we are of opinion that the trust deed, on a proper interpretation, gives an absolute power of selection to the trustees to choose between charitable and non-charitable objects of the trust for spending the entire income of the trust properties. It follows that the Agastyar trust does not fulfil the conditions imposed by S. 4 (3) (i) of the Act and the donation made by the assessee to the Agastyar trust cannot, therefore. be exempted under S. 15-B of theare unable to accept the argument put forward on behalf of the appellants as correct. It appears that before the Appellate Tribunal there was no detailed examination of the question of law. The Tribunal merely referred to an earlier case it had dealt with regarding the same assessee. The Tribunal apparently took the view in the earlier case that even if the income which the trust earned in business was not exempt from tax the income derived from donations which was utilised for charitable purposes would be eligible for exemption. So far as the assessment for the year 1955-56 is concerned the question was not considered by the Appellate Tribunal at any length. But the In come-tax Officer held that the trust did not fulfil the conditions laid down by S. 15-B of theare, therefore, unable to accept the contention of the appellants that the question whether S. 4 (3) (i) of the Act applies to the Agastyar Trust was not within the scope of the question referred to the High Court by the Appellate Tribunal or that the High Court went beyond its jurisdiction in answering that question. In Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 : (AIR 1961 SC 1633 ), this Court examined the scope of the jurisdiction of the High Court in a reference under S. 66 (1) and it was pointed out that even where a question of law was not raised before the Tribunal but the Tribunal deals with it, it must be deemed to be one arising out of its order. Applying the principle to the present case, we hold that the High Court was within its jurisdiction in examining the question whether the Agastyar Trust was eligible for exemption from income-tax under S. 4 (3) (i) of the Act. We accordingly reject the argument of the appellants on this aspect of thewe have already stated, on a proper interpretation of the terms of the trust deed in the present case we are satisfied that Paragraph 2 (d) is not subsidiary in character to Para. 2 (c) and the trustees have been expressly granted the discretion to apply the income of the trust wholly to aobject to the exclusion of charitable objects. It follows, therefore, that in view of the absolute power of selection granted to the trustees to select between charitable andobjects, the provisions of Section 4 (3) (i) of the Act cannot be applied to the Agastyar trust and no exemption can be granted to the assessee under S.of the Act. We accordingly hold that the High Court rightly answered the question of law against the assessee and in favour of the Commissioner of
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M/s. Govind Rubber Ltd Vs. M/s. Louids Dreyfus Commodities Asia Pvt. Ltd | lean in favour of giving effect to the arbitration clause to which the parties have agreed. The learned Author has also referred to another judgment in Paul Smith Ltd v. H and S International Holdings Inc., (1991) 2 Llyods Rep.127 in order to emphasise that in construing an arbitration agreement the Court should seek to give effect to the intentions of the parties. (See page 28 of the book). 18. The Apex Court also in the case of Union of India v. D.N. Revri and Co., AIR 1976 SC 2257 , held that a commercial document between the parties must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. The learned Judges clarified it by saying:- "7. It must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. It would not be right while interpreting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents. The meaning of such a contract must be gathered by adopting a common sense approach and it must not be allowed to be thwarted by a narrow, pedantic and legalistic interpretation." 19. In the instant case, admittedly, the respondent issued a sale contract for supply of goods incorporating in the said sale contract various terms including hundred percent payment against letter of credit and also providing the governing terms as "Singapore Commodity Exchange". Though the appellant issued purchase order dated 21st August, 2008 on terms and conditions set out therein but the appellant requested the respondent to change the payment terms mentioned in the sales contract. The request for amendment was accepted by the respondent. At this juncture, we would like to quote hereinbelow the Email dated 27th August, 2008 sent by the appellant acknowledging the amendments on the payment term in the sale contract. "[email protected] [email protected]:[email protected]@idocmodities.comSubject: Re: Govind Rubber"Hi Mee Kwan,As discussed & confirmed with Andrew yd, Govind Rubbeers payment terms have been changed to:10% ADVANCE BY TT, BALANCE AGAINST D/P AT SIGHT SO, PLEASE AMEND YOUR SALE CONTRACT ACCORDINGLY & SEND ME THE SALE CONTRACT & PROFORMA INVOICE FOR BOTH CONTRACTS SEPARATELY.Await your earlier action, since Govind Rubber wants to send the 10% advance TT today & is waiting for your Proforma Invoice.Rgds,Biju___Original Message__From: [email protected]: [email protected]: [email protected];[email protected]: Re: Govind Rubber." 20. From the documents available on record and also referred in the impugned order, it is evident that at the request of the appellant, the invoice was split into two invoices and in the said letter of request reference was made to the sale contract. The appellant proceeded to supply the goods on the terms contained in the sale contract. The intention of the parties, as appearing from the correspondence, it can safely be inferred that there had been meeting of mind between the parties and they were ad idem to the terms of sale contract which contained the forum of dispute resolution at Singapore Commodity Exchange. Apart from that, after the dispute was referred to Singapore Commodity Exchange for arbitration, the appellant in response to the notice made a counter claim before the Arbitral Tribunal contending that the appellant had incurred huge loss in view of the failure on the part of the respondent to supply the goods in time. By making a counter claim, the appellant indeed submitted to the jurisdiction of the arbitrator. 21. The principles laid down by the House of Lords in the case of Cairncross v. Lorimer, (1860) 7 Jur NS 149, were approved of by the Judicial Committee in the case of Sarat Chunder Dey v. Gopal Chunder Laha, 19 IA 203 . We may also take the liberty of reading a passage from another Privy Council decision where the general principle applicable to such cases is stated. "On the whole, therefore, their Lordships think that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award": see the case of Chowdhri Murtaza-Hossein v. Mt. Bibi Bechunnissa, 3 IA 209. It is true that the question in the present case is a question of competence of the arbitrator which in a sense is a question of jurisdiction, but it is not like the jurisdiction of a Court, because the jurisdiction of arbitrators is derived from consent of the parties. 22. It is clear that for construing an arbitration agreement, the intention of the parties must be looked into. The materials on record which have been discussed hereinabove make it very clear that the appellant was prima facie acting pursuant to the sale contract issued by the respondent. So, it is not very material whether it was signed by the second respondent or not.23. It is not in dispute that although the appellant having full notice and knowledge of the dispute having been decided by the Arbitral Tribunal and an award was passed on 18th December, 2009, the said award has not been challenged by the appellant in any court of law. Instead, the appellant filed the suit against the respondent in the High Court inter alia praying for damages.24. In the aforesaid premise, we do not find any valid ground to oppose the enforcement of the foreign award. The High Court in the impugned order has rightly held that the foreign award is enforceable under Part II and is binding for all purposes on the parties. | 0[ds]12. There may not be any dispute with regard to the settled proposition of law that an agreement even if not signed by the parties can be spelt out from correspondence exchanged between the parties. However it is the duty of the Court to construe correspondence with a view to arrive at the conclusion whether there was any meeting of mind between the parties which could create a binding contract between them. It is necessary for the Court to find out from the correspondence as to whether the parties were ad idem to the terms of contract.We are also of the opinion that a commercial document having arbitration clause has to be interpreted in such a manner as to give effect to the agreement rather than invalidate it. On the principle of construction of a commercial agreement, Scrutton on Charter Parties (17th Edition, Sweet & Maxwell, London, 1964) explained that commercial agreement has to be construed, according to the sense and meaning as collected in the first place from the terms used and understood in the plain, ordinary and popular sense (See Article 6 at page 16). The learned Author also said that the agreement has to be interpreted in order to effectuate the immediate intention of the parties. Similarly, Russel on Arbitration (21st Edition) opined, relying on Astro Vendeor Compania Naviera SA v. Mabanaft GmbH, (1970) 2 Llyods Rep.267, that the Court should, if the circumstances allow, lean in favour of giving effect to the arbitration clause to which the parties have agreed. The learned Author has also referred to another judgment in Paul Smith Ltd v. H and S International Holdings Inc., (1991) 2 Llyods Rep.127 in order to emphasise that in construing an arbitration agreement the Court should seek to give effect to the intentions of the parties. (See page 28 of the book).It is clear that for construing an arbitration agreement, the intention of the parties must be looked into. The materials on record which have been discussed hereinabove make it very clear that the appellant was prima facie acting pursuant to the sale contract issued by the respondent. So, it is not very material whether it was signed by the second respondent or not.23. It is not in dispute that although the appellant having full notice and knowledge of the dispute having been decided by the Arbitral Tribunal and an award was passed on 18th December, 2009, the said award has not been challenged by the appellant in any court of law. Instead, the appellant filed the suit against the respondent in the High Court inter alia praying for damages.24. In the aforesaid premise, we do not find any valid ground to oppose the enforcement of the foreign award. The High Court in the impugned order has rightly held that the foreign award is enforceable under Part II and is binding for all purposes on the parties. | 0 | 4,067 | 533 | ### 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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lean in favour of giving effect to the arbitration clause to which the parties have agreed. The learned Author has also referred to another judgment in Paul Smith Ltd v. H and S International Holdings Inc., (1991) 2 Llyods Rep.127 in order to emphasise that in construing an arbitration agreement the Court should seek to give effect to the intentions of the parties. (See page 28 of the book). 18. The Apex Court also in the case of Union of India v. D.N. Revri and Co., AIR 1976 SC 2257 , held that a commercial document between the parties must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. The learned Judges clarified it by saying:- "7. It must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. It would not be right while interpreting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents. The meaning of such a contract must be gathered by adopting a common sense approach and it must not be allowed to be thwarted by a narrow, pedantic and legalistic interpretation." 19. In the instant case, admittedly, the respondent issued a sale contract for supply of goods incorporating in the said sale contract various terms including hundred percent payment against letter of credit and also providing the governing terms as "Singapore Commodity Exchange". Though the appellant issued purchase order dated 21st August, 2008 on terms and conditions set out therein but the appellant requested the respondent to change the payment terms mentioned in the sales contract. The request for amendment was accepted by the respondent. At this juncture, we would like to quote hereinbelow the Email dated 27th August, 2008 sent by the appellant acknowledging the amendments on the payment term in the sale contract. "[email protected] [email protected]:[email protected]@idocmodities.comSubject: Re: Govind Rubber"Hi Mee Kwan,As discussed & confirmed with Andrew yd, Govind Rubbeers payment terms have been changed to:10% ADVANCE BY TT, BALANCE AGAINST D/P AT SIGHT SO, PLEASE AMEND YOUR SALE CONTRACT ACCORDINGLY & SEND ME THE SALE CONTRACT & PROFORMA INVOICE FOR BOTH CONTRACTS SEPARATELY.Await your earlier action, since Govind Rubber wants to send the 10% advance TT today & is waiting for your Proforma Invoice.Rgds,Biju___Original Message__From: [email protected]: [email protected]: [email protected];[email protected]: Re: Govind Rubber." 20. From the documents available on record and also referred in the impugned order, it is evident that at the request of the appellant, the invoice was split into two invoices and in the said letter of request reference was made to the sale contract. The appellant proceeded to supply the goods on the terms contained in the sale contract. The intention of the parties, as appearing from the correspondence, it can safely be inferred that there had been meeting of mind between the parties and they were ad idem to the terms of sale contract which contained the forum of dispute resolution at Singapore Commodity Exchange. Apart from that, after the dispute was referred to Singapore Commodity Exchange for arbitration, the appellant in response to the notice made a counter claim before the Arbitral Tribunal contending that the appellant had incurred huge loss in view of the failure on the part of the respondent to supply the goods in time. By making a counter claim, the appellant indeed submitted to the jurisdiction of the arbitrator. 21. The principles laid down by the House of Lords in the case of Cairncross v. Lorimer, (1860) 7 Jur NS 149, were approved of by the Judicial Committee in the case of Sarat Chunder Dey v. Gopal Chunder Laha, 19 IA 203 . We may also take the liberty of reading a passage from another Privy Council decision where the general principle applicable to such cases is stated. "On the whole, therefore, their Lordships think that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award": see the case of Chowdhri Murtaza-Hossein v. Mt. Bibi Bechunnissa, 3 IA 209. It is true that the question in the present case is a question of competence of the arbitrator which in a sense is a question of jurisdiction, but it is not like the jurisdiction of a Court, because the jurisdiction of arbitrators is derived from consent of the parties. 22. It is clear that for construing an arbitration agreement, the intention of the parties must be looked into. The materials on record which have been discussed hereinabove make it very clear that the appellant was prima facie acting pursuant to the sale contract issued by the respondent. So, it is not very material whether it was signed by the second respondent or not.23. It is not in dispute that although the appellant having full notice and knowledge of the dispute having been decided by the Arbitral Tribunal and an award was passed on 18th December, 2009, the said award has not been challenged by the appellant in any court of law. Instead, the appellant filed the suit against the respondent in the High Court inter alia praying for damages.24. In the aforesaid premise, we do not find any valid ground to oppose the enforcement of the foreign award. The High Court in the impugned order has rightly held that the foreign award is enforceable under Part II and is binding for all purposes on the parties.
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12. There may not be any dispute with regard to the settled proposition of law that an agreement even if not signed by the parties can be spelt out from correspondence exchanged between the parties. However it is the duty of the Court to construe correspondence with a view to arrive at the conclusion whether there was any meeting of mind between the parties which could create a binding contract between them. It is necessary for the Court to find out from the correspondence as to whether the parties were ad idem to the terms of contract.We are also of the opinion that a commercial document having arbitration clause has to be interpreted in such a manner as to give effect to the agreement rather than invalidate it. On the principle of construction of a commercial agreement, Scrutton on Charter Parties (17th Edition, Sweet & Maxwell, London, 1964) explained that commercial agreement has to be construed, according to the sense and meaning as collected in the first place from the terms used and understood in the plain, ordinary and popular sense (See Article 6 at page 16). The learned Author also said that the agreement has to be interpreted in order to effectuate the immediate intention of the parties. Similarly, Russel on Arbitration (21st Edition) opined, relying on Astro Vendeor Compania Naviera SA v. Mabanaft GmbH, (1970) 2 Llyods Rep.267, that the Court should, if the circumstances allow, lean in favour of giving effect to the arbitration clause to which the parties have agreed. The learned Author has also referred to another judgment in Paul Smith Ltd v. H and S International Holdings Inc., (1991) 2 Llyods Rep.127 in order to emphasise that in construing an arbitration agreement the Court should seek to give effect to the intentions of the parties. (See page 28 of the book).It is clear that for construing an arbitration agreement, the intention of the parties must be looked into. The materials on record which have been discussed hereinabove make it very clear that the appellant was prima facie acting pursuant to the sale contract issued by the respondent. So, it is not very material whether it was signed by the second respondent or not.23. It is not in dispute that although the appellant having full notice and knowledge of the dispute having been decided by the Arbitral Tribunal and an award was passed on 18th December, 2009, the said award has not been challenged by the appellant in any court of law. Instead, the appellant filed the suit against the respondent in the High Court inter alia praying for damages.24. In the aforesaid premise, we do not find any valid ground to oppose the enforcement of the foreign award. The High Court in the impugned order has rightly held that the foreign award is enforceable under Part II and is binding for all purposes on the parties.
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B.N. Agarwalla Vs. State Of Orissa | "in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal. The question, therefore, is whether the further words used in the second expression in sub-section (7) must lead to a different conclusion. The construction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to the provision 8. We may now consider the meaning of the word by for ascertaining the meaning of the expression "by the said date". Meaning of the word by in some of the dictionaries is "Blacks Law Dictionary (Sixth End.)"Before a certain time; ... not later than a certain time; on or before a certain time;...." The New Shorter Oxford English Dictionary "... On or before, not later than. ..." 9. No doubt the word by means "before a certain time" as well as "on or before a certain time". The question is: whether, the word by in the expression "by the said date" would mean in other words before or on 26-3-1983 in the present context? We have already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal 11. Learned counsel for the appellant has referred to some decisions wherein the word by has been construed to mean that it includes the end or the expire of the date or period indicated. As we have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity | 0[ds]The meaning of the second expression should be consistent with that of the first expression since the two could not be used to create a conflict. The purpose of sub-section (7) is to divest the arbitrator of authority to make the award in all such arbitration proceedings which were pending before the arbitrator on the date of commencement of the said Act and to provide for their automatic transfer to the Arbitration Tribunal.The General Clauses Act, 1897 provides that unless the contrary is expressed, an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it must be held that the said Act came into force on the midnight on the expiration of the day preceding its commencement, i.e., the midnight between 25-3-1983 and 26-3-1983. There can be no doubt that if the second expression "in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitrationconstruction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to thehave already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitrationwe have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity | 0 | 2,218 | 1,081 | ### 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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"in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal. The question, therefore, is whether the further words used in the second expression in sub-section (7) must lead to a different conclusion. The construction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to the provision 8. We may now consider the meaning of the word by for ascertaining the meaning of the expression "by the said date". Meaning of the word by in some of the dictionaries is "Blacks Law Dictionary (Sixth End.)"Before a certain time; ... not later than a certain time; on or before a certain time;...." The New Shorter Oxford English Dictionary "... On or before, not later than. ..." 9. No doubt the word by means "before a certain time" as well as "on or before a certain time". The question is: whether, the word by in the expression "by the said date" would mean in other words before or on 26-3-1983 in the present context? We have already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal 11. Learned counsel for the appellant has referred to some decisions wherein the word by has been construed to mean that it includes the end or the expire of the date or period indicated. As we have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity
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### Explanation:
The meaning of the second expression should be consistent with that of the first expression since the two could not be used to create a conflict. The purpose of sub-section (7) is to divest the arbitrator of authority to make the award in all such arbitration proceedings which were pending before the arbitrator on the date of commencement of the said Act and to provide for their automatic transfer to the Arbitration Tribunal.The General Clauses Act, 1897 provides that unless the contrary is expressed, an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it must be held that the said Act came into force on the midnight on the expiration of the day preceding its commencement, i.e., the midnight between 25-3-1983 and 26-3-1983. There can be no doubt that if the second expression "in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitrationconstruction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to thehave already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitrationwe have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity
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Gopal Singh & Another Vs. State of Madhya Pradesh & Another | the dying declaration, was a reasonable conclusion which, in an appeal against acquittal, was not liable to be set aside.7. We have already referred to the fact that the learned Sessions Judge was not prepared to accept the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7, that deceased Modsingh had named the appellants as assailants when they met him in the morning at 8.00 a.m. on the road side. Detailed reasons have been given by the learned Sessions Judge why he considered their evidence unsatisfactory. The High Court, however, in one sentence expressed its opinion that the evidence of these two witnesses, amongst others, corroborated the dying declaration in respect of the identity of the appellants without giving any reasons why it differed on the point from the learned Sessions Judge. It is obvious that the High Court was so well satisfied by the written dying declaration as establishing the identity of the appellants that it ignored to consider the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7 independently to see how far they were reliable. In an appeal against acquittal we think the High Court ought to have expressed itself more fully why it considered the learned Sessions Judges conclusion was unreasonable. In our opinion that conclusion is unexceptionable.8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See Khushal Rao v. The State of Bombay. (1958 SCR 552.) In this case, it must be first remembered that though the names of the appellants fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against. Secondly, the assault had taken place in a jungle on a dark night which may cause mistaken identity. Thirdly, neither Modsingh nor any of his relations had given any cause to the appellants, personally, to plan and execute a murderous attack on him. Fourthly, there were other persons bearing the appellants names in the same village and admittedly they were on inimical terms with the deceased. Fifthly, the deceased had named Hatesingh also as one of the assailants although it has now turned out in the evidence of Umraodas, P.W. 1 that the deceased and Hatesingh had cordial relations with each other. In these circumstances, sufficient corroboration would be required for acting on the dying declaration. Apparently, the High Court thought that corroboration was necessary and this it sought in the recovery of the blood stained shirt and bushshirt from the room of the appellants which the learned Sessions Judge had specifically discarded. We think that the learned Sessions Judge had given very satisfactory reasons for discarding this evidence and, in our opinion, the High Court was in error in taking a different view, especially, when the High Court had realised that there was something fishy in the manner in which a blood stained shirt was recovered from Hatesingh who had been acquitted. Hatesingh, like the appellants, had been arrested on the 10th. His shirt which he was wearing at the time was not seized. But next day his shirt was seized because some blood spots were noticed. It is rather extraordinary that the police should not see blood stains on the shirt when he was arrested but should notice them on the next day. The High Court, therefore, was right in discarding that evidence because it is plain enough that at the time of the arrest there must not have been really any blood stains on the shirt of Hatesingh. Similar considerations should have weighted with the court with regard to the alleged recovery of the shirt and the bushshirt from the room of the appellants. The appellants were living in a room close to the Police Station. They were arrested on the afternoon of 10th. One should have expected the Police to search the room immediately but it does not appear from the record that a search was made at the time. On arrest, the person of Gopalsingh was searched and an iron key with an iron ring attached to it was found on this person. See Ext. P. 6. The same, however, does not appear to have been sealed and it is obvious that the police had the key. Though the Police and the Pancha Madan Lal, P.W. 9 claim that the appellant Gopal Singh produced the key with which the door of the room is opened next day at 2.00 p.m. we feel no doubt at all that the key must have been in the possession of the police till that time. In these circumstances the learned Sessions Judge was quite right in suspecting the recovery of the blood stained shirt and bushshirt from the room. If Hatesinghs shirt could show blood stains on the 11th there was no difficulty in the shirt and the bushshirt recovered from the room of the appellants showing similar blood stains. There was no reason whatsoever why the room of the appellants was not immediately searched for finding blood stained clothes. The memos containing the disclosure statements are worthless and the High Court has rightly not relied upon those statements. In our opinion, therefore, there was no good reason for the High Court to discard the conclusion of the learned Sessions Judge that the recovery of the shirt and the bushshirt cannot be regarded as above board. | 1[ds]The High Court, however, preferred to rely on the bare word of the Magistrate Mr. Shakya who, when questioned in theas to why he had not enquired about the names of the fathers, stated that he did not think it necessary to ask their fathers names and residence because a case was pending in his court. This explanation is rightly not accepted by the High Court as satisfactory. However, the High Court was prepared to proceed on the learned Magistrates statement that a case was pending, and that is how the High Court came to the conclusion that Gopalsingh and Dulesingh mentioned in the dying declaration must be the appellants. We think that the High Court was not justified in relying on any part of the statement made by Mr.statement, therefore, made by Mr. Shakya that a case was pending in his court at that time was not made by him of his own knowledge but on the basis of some rumours. He had not remembered if Modsingh had come before him in any case. In these circumstances, therefore, his bare statement that a case was pending in his court at that time between Modsingh, on the one hand, and some others, on the other, has really no value. And if the evidence of Mr. Shakya on the question as to whether a case was pending is discarded, there is no other evidence to show that a case in which Modsingh and the fathers of the appellants were involved was actually pending at the time. The High Court was inclined not to agree with the learned Sessions Judge because it was satisfied that the allegation with regard to the pending case or cases made in the dying declaration clearly establish the identity of the appellants. But if, as we have shown, there was really no evidence about the pending case or case it would mean that the conclusion of the Session Judge that there was no sufficient identification of Gopalsingh and Dulesingh, as mentioned in the dying declaration, was a reasonable conclusion which, in an appeal against acquittal, was not liable to be set aside.7. We have already referred to the fact that the learned Sessions Judge was not prepared to accept the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7, that deceased Modsingh had named the appellants as assailants when they met him in the morning at 8.00 a.m. on the road side. Detailed reasons have been given by the learned Sessions Judge why he considered their evidence unsatisfactory. The High Court, however, in one sentence expressed its opinion that the evidence of these two witnesses, amongst others, corroborated the dying declaration in respect of the identity of the appellants without giving any reasons why it differed on the point from the learned Sessions Judge. It is obvious that the High Court was so well satisfied by the written dying declaration as establishing the identity of the appellants that it ignored to consider the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7 independently to see how far they were reliable. In an appeal against acquittal we think the High Court ought to have expressed itself more fully why it considered the learned Sessions Judges conclusion was unreasonable. In our opinion that conclusion is unexceptionable.8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See Khushal Rao v. The State of Bombay. (1958 SCR 552.) In this case, it must be first remembered that though the names of the appellants fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against. Secondly, the assault had taken place in a jungle on a dark night which may cause mistaken identity. Thirdly, neither Modsingh nor any of his relations had given any cause to the appellants, personally, to plan and execute a murderous attack on him. Fourthly, there were other persons bearing the appellants names in the same village and admittedly they were on inimical terms with the deceased. Fifthly, the deceased had named Hatesingh also as one of the assailants although it has now turned out in the evidence of Umraodas, P.W. 1 that the deceased and Hatesingh had cordial relations with each other. In these circumstances, sufficient corroboration would be required for acting on the dying declaration. Apparently, the High Court thought that corroboration was necessary and this it sought in the recovery of the blood stained shirt and bushshirt from the room of the appellants which the learned Sessions Judge had specifically discarded. We think that the learned Sessions Judge had given very satisfactory reasons for discarding this evidence and, in our opinion, the High Court was in error in taking a different view, especially, when the High Court had realised that there was something fishy in the manner in which a blood stained shirt was recovered from Hatesingh who had been acquitted. Hatesingh, like the appellants, had been arrested on the 10th. His shirt which he was wearing at the time was not seized. But next day his shirt was seized because some blood spots were noticed. It is rather extraordinary that the police should not see blood stains on the shirt when he was arrested but should notice them on the next day. The High Court, therefore, was right in discarding that evidence because it is plain enough that at the time of the arrest there must not have been really any blood stains on the shirt of Hatesingh. Similar considerations should have weighted with the court with regard to the alleged recovery of the shirt and the bushshirt from the room of the appellants. The appellants were living in a room close to the Police Station. They were arrested on the afternoon of 10th. One should have expected the Police to search the room immediately but it does not appear from the record that a search was made at the time. On arrest, the person of Gopalsingh was searched and an iron key with an iron ring attached to it was found on this person. See Ext. P. 6. The same, however, does not appear to have been sealed and it is obvious that the police had the key. Though the Police and the Pancha Madan Lal, P.W. 9 claim that the appellant Gopal Singh produced the key with which the door of the room is opened next day at 2.00 p.m. we feel no doubt at all that the key must have been in the possession of the police till that time. In these circumstances the learned Sessions Judge was quite right in suspecting the recovery of the blood stained shirt and bushshirt from the room. If Hatesinghs shirt could show blood stains on the 11th there was no difficulty in the shirt and the bushshirt recovered from the room of the appellants showing similar blood stains. There was no reason whatsoever why the room of the appellants was not immediately searched for finding blood stained clothes. The memos containing the disclosure statements are worthless and the High Court has rightly not relied upon those statements. In our opinion, therefore, there was no good reason for the High Court to discard the conclusion of the learned Sessions Judge that the recovery of the shirt and the bushshirt cannot be regarded as above board. | 1 | 2,833 | 1,455 | ### Instruction:
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the dying declaration, was a reasonable conclusion which, in an appeal against acquittal, was not liable to be set aside.7. We have already referred to the fact that the learned Sessions Judge was not prepared to accept the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7, that deceased Modsingh had named the appellants as assailants when they met him in the morning at 8.00 a.m. on the road side. Detailed reasons have been given by the learned Sessions Judge why he considered their evidence unsatisfactory. The High Court, however, in one sentence expressed its opinion that the evidence of these two witnesses, amongst others, corroborated the dying declaration in respect of the identity of the appellants without giving any reasons why it differed on the point from the learned Sessions Judge. It is obvious that the High Court was so well satisfied by the written dying declaration as establishing the identity of the appellants that it ignored to consider the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7 independently to see how far they were reliable. In an appeal against acquittal we think the High Court ought to have expressed itself more fully why it considered the learned Sessions Judges conclusion was unreasonable. In our opinion that conclusion is unexceptionable.8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See Khushal Rao v. The State of Bombay. (1958 SCR 552.) In this case, it must be first remembered that though the names of the appellants fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against. Secondly, the assault had taken place in a jungle on a dark night which may cause mistaken identity. Thirdly, neither Modsingh nor any of his relations had given any cause to the appellants, personally, to plan and execute a murderous attack on him. Fourthly, there were other persons bearing the appellants names in the same village and admittedly they were on inimical terms with the deceased. Fifthly, the deceased had named Hatesingh also as one of the assailants although it has now turned out in the evidence of Umraodas, P.W. 1 that the deceased and Hatesingh had cordial relations with each other. In these circumstances, sufficient corroboration would be required for acting on the dying declaration. Apparently, the High Court thought that corroboration was necessary and this it sought in the recovery of the blood stained shirt and bushshirt from the room of the appellants which the learned Sessions Judge had specifically discarded. We think that the learned Sessions Judge had given very satisfactory reasons for discarding this evidence and, in our opinion, the High Court was in error in taking a different view, especially, when the High Court had realised that there was something fishy in the manner in which a blood stained shirt was recovered from Hatesingh who had been acquitted. Hatesingh, like the appellants, had been arrested on the 10th. His shirt which he was wearing at the time was not seized. But next day his shirt was seized because some blood spots were noticed. It is rather extraordinary that the police should not see blood stains on the shirt when he was arrested but should notice them on the next day. The High Court, therefore, was right in discarding that evidence because it is plain enough that at the time of the arrest there must not have been really any blood stains on the shirt of Hatesingh. Similar considerations should have weighted with the court with regard to the alleged recovery of the shirt and the bushshirt from the room of the appellants. The appellants were living in a room close to the Police Station. They were arrested on the afternoon of 10th. One should have expected the Police to search the room immediately but it does not appear from the record that a search was made at the time. On arrest, the person of Gopalsingh was searched and an iron key with an iron ring attached to it was found on this person. See Ext. P. 6. The same, however, does not appear to have been sealed and it is obvious that the police had the key. Though the Police and the Pancha Madan Lal, P.W. 9 claim that the appellant Gopal Singh produced the key with which the door of the room is opened next day at 2.00 p.m. we feel no doubt at all that the key must have been in the possession of the police till that time. In these circumstances the learned Sessions Judge was quite right in suspecting the recovery of the blood stained shirt and bushshirt from the room. If Hatesinghs shirt could show blood stains on the 11th there was no difficulty in the shirt and the bushshirt recovered from the room of the appellants showing similar blood stains. There was no reason whatsoever why the room of the appellants was not immediately searched for finding blood stained clothes. The memos containing the disclosure statements are worthless and the High Court has rightly not relied upon those statements. In our opinion, therefore, there was no good reason for the High Court to discard the conclusion of the learned Sessions Judge that the recovery of the shirt and the bushshirt cannot be regarded as above board.
### Response:
1
### Explanation:
dying declaration, was a reasonable conclusion which, in an appeal against acquittal, was not liable to be set aside.7. We have already referred to the fact that the learned Sessions Judge was not prepared to accept the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7, that deceased Modsingh had named the appellants as assailants when they met him in the morning at 8.00 a.m. on the road side. Detailed reasons have been given by the learned Sessions Judge why he considered their evidence unsatisfactory. The High Court, however, in one sentence expressed its opinion that the evidence of these two witnesses, amongst others, corroborated the dying declaration in respect of the identity of the appellants without giving any reasons why it differed on the point from the learned Sessions Judge. It is obvious that the High Court was so well satisfied by the written dying declaration as establishing the identity of the appellants that it ignored to consider the evidence of Umraodas, P.W. 1 and Chhotulal, P.W. 7 independently to see how far they were reliable. In an appeal against acquittal we think the High Court ought to have expressed itself more fully why it considered the learned Sessions Judges conclusion was unreasonable. In our opinion that conclusion is unexceptionable.8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See Khushal Rao v. The State of Bombay. (1958 SCR 552.) In this case, it must be first remembered that though the names of the appellants fathers were known to Modsingh and others who accompanied him to the Police Station, their fathers names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against. Secondly, the assault had taken place in a jungle on a dark night which may cause mistaken identity. Thirdly, neither Modsingh nor any of his relations had given any cause to the appellants, personally, to plan and execute a murderous attack on him. Fourthly, there were other persons bearing the appellants names in the same village and admittedly they were on inimical terms with the deceased. Fifthly, the deceased had named Hatesingh also as one of the assailants although it has now turned out in the evidence of Umraodas, P.W. 1 that the deceased and Hatesingh had cordial relations with each other. In these circumstances, sufficient corroboration would be required for acting on the dying declaration. Apparently, the High Court thought that corroboration was necessary and this it sought in the recovery of the blood stained shirt and bushshirt from the room of the appellants which the learned Sessions Judge had specifically discarded. We think that the learned Sessions Judge had given very satisfactory reasons for discarding this evidence and, in our opinion, the High Court was in error in taking a different view, especially, when the High Court had realised that there was something fishy in the manner in which a blood stained shirt was recovered from Hatesingh who had been acquitted. Hatesingh, like the appellants, had been arrested on the 10th. His shirt which he was wearing at the time was not seized. But next day his shirt was seized because some blood spots were noticed. It is rather extraordinary that the police should not see blood stains on the shirt when he was arrested but should notice them on the next day. The High Court, therefore, was right in discarding that evidence because it is plain enough that at the time of the arrest there must not have been really any blood stains on the shirt of Hatesingh. Similar considerations should have weighted with the court with regard to the alleged recovery of the shirt and the bushshirt from the room of the appellants. The appellants were living in a room close to the Police Station. They were arrested on the afternoon of 10th. One should have expected the Police to search the room immediately but it does not appear from the record that a search was made at the time. On arrest, the person of Gopalsingh was searched and an iron key with an iron ring attached to it was found on this person. See Ext. P. 6. The same, however, does not appear to have been sealed and it is obvious that the police had the key. Though the Police and the Pancha Madan Lal, P.W. 9 claim that the appellant Gopal Singh produced the key with which the door of the room is opened next day at 2.00 p.m. we feel no doubt at all that the key must have been in the possession of the police till that time. In these circumstances the learned Sessions Judge was quite right in suspecting the recovery of the blood stained shirt and bushshirt from the room. If Hatesinghs shirt could show blood stains on the 11th there was no difficulty in the shirt and the bushshirt recovered from the room of the appellants showing similar blood stains. There was no reason whatsoever why the room of the appellants was not immediately searched for finding blood stained clothes. The memos containing the disclosure statements are worthless and the High Court has rightly not relied upon those statements. In our opinion, therefore, there was no good reason for the High Court to discard the conclusion of the learned Sessions Judge that the recovery of the shirt and the bushshirt cannot be regarded as above board.
|
Ratan Lal Vs. The State Of Maharashtra | 66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under S. 6A that the article was fit to be used as intoxicating liquor. The offence in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), was committed in July 1955 and on the terms of sub-s. (6) as it then stood it was open to the State in a prosecution for infringement of a prohibition contained in Ss. 12 and 13 to rely upon the presumption under S. 6A or to establish that the medicinal preparation was fit for use as intoxicating liquor aliunde. By Act 22 of 1960 which was brought into force on April 20 1960, the Bombay Legislature amended, inter alia, sub. s. (6) of S. 6A, and incorporated sub-s. (7) therein. Sub-section (6) and (7) as amended and incorporated read as follows:"(6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub-s. (1) is fit for use as intoxicating liquor and also on any matters incidental to the question, referred to it by the State Government. On obtaining such advice, the State Government shall determine whether any such article is fit for use as intoxicating liquor, and upon determination of the State Government that it is so fit, such article shall until the contrary is proved, be presumed to be fit for use as intoxicating liquor.(7) Until the State Government has determined as aforesaid any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use."9. The scheme of S. 6A has by the amending Act been completely altered. The Legislature has prescribed by sub-s. (7) that until the State Government has determined any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use. The Legislature has, therefore, prescribed a fiction which continues to function till the State Government has determined on the report of the Board of Experts, that any article mentioned in sub-s. (1) is fit for use as intoxicating liquor. By sub-s. (6) as amended it is provided that after the State Government has obtained the advice of the Board of Experts, the State Government shall determine whether such article is fit for use as intoxicating liquor and upon such determination of the State Government that it is so fit, such article shall until the contrary is proved be presumed to be fit for use as intoxicating liquor. Under the amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.10. In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.11. It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ). In Narandas Mangilals case, 1962 SC 579) . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the Act. Sub-section (6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), the effect of sub-s. (7) of S. 6A did not fall to be considered.12. | 1[ds]Attention must, therefore, be directed to ascertain whether the preparations did correspond with the description and limitations mentioned in S. 59A. If they did not, exemption under S. 24A will be inoperative, even if they are medicinalthe amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ). In Narandas Mangilals case, 1962 SC 579) . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the(6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), the effect of sub-s. (7) of S. 6A did not fall to be considered. | 1 | 3,457 | 678 | ### Instruction:
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66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under S. 6A that the article was fit to be used as intoxicating liquor. The offence in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), was committed in July 1955 and on the terms of sub-s. (6) as it then stood it was open to the State in a prosecution for infringement of a prohibition contained in Ss. 12 and 13 to rely upon the presumption under S. 6A or to establish that the medicinal preparation was fit for use as intoxicating liquor aliunde. By Act 22 of 1960 which was brought into force on April 20 1960, the Bombay Legislature amended, inter alia, sub. s. (6) of S. 6A, and incorporated sub-s. (7) therein. Sub-section (6) and (7) as amended and incorporated read as follows:"(6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub-s. (1) is fit for use as intoxicating liquor and also on any matters incidental to the question, referred to it by the State Government. On obtaining such advice, the State Government shall determine whether any such article is fit for use as intoxicating liquor, and upon determination of the State Government that it is so fit, such article shall until the contrary is proved, be presumed to be fit for use as intoxicating liquor.(7) Until the State Government has determined as aforesaid any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use."9. The scheme of S. 6A has by the amending Act been completely altered. The Legislature has prescribed by sub-s. (7) that until the State Government has determined any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use. The Legislature has, therefore, prescribed a fiction which continues to function till the State Government has determined on the report of the Board of Experts, that any article mentioned in sub-s. (1) is fit for use as intoxicating liquor. By sub-s. (6) as amended it is provided that after the State Government has obtained the advice of the Board of Experts, the State Government shall determine whether such article is fit for use as intoxicating liquor and upon such determination of the State Government that it is so fit, such article shall until the contrary is proved be presumed to be fit for use as intoxicating liquor. Under the amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.10. In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.11. It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ). In Narandas Mangilals case, 1962 SC 579) . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the Act. Sub-section (6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), the effect of sub-s. (7) of S. 6A did not fall to be considered.12.
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1
### Explanation:
Attention must, therefore, be directed to ascertain whether the preparations did correspond with the description and limitations mentioned in S. 59A. If they did not, exemption under S. 24A will be inoperative, even if they are medicinalthe amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ). In Narandas Mangilals case, 1962 SC 579) . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the(6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), the effect of sub-s. (7) of S. 6A did not fall to be considered.
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SHEETLA DEVI Vs. THE STATE OF UTTAR PRADESH COLLECTOR / DISTRICT MAGISTRATE | Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 05.01.2008 passed by the High Court of Judicature at Allahabad in C.M.W.P. No.359 of 2008 whereby the High Court dismissed the writ petition filed by the appellants herein.2. This appeal involves a short point as would be clear from a few facts mentioned hereinbelow.3. The matter relates to the land, which was subject matter of the ceiling proceedings under the U.P. Imposition of Ceiling of Land Holdings Act, 1960 (hereinafter referred to as "the Act?).4. One Ram Bharose Lal originally held the land in question. The proceedings in relation to his entitlement to hold the land after the Act came into force began on 30.01.1974 with issuance of notice to him under Section 10 (2) of the Act.5. Since 30.01.1974 till passing of the impugned order by the High Court on 05.01.2000, out of which this appeal arises, the matter relating to the land in question was being dealt with either by the Prescribed Authority or the Appellate Authority under the Act and then by the High Court in its writ jurisdiction in several rounds.6. On the death of the original holder, his wife– appellant No.1 and son-appellant No.2 herein have been pursuing the matter.7. By order dated 30.09.1974, the Prescribed Authority, out of the total land measuring 23.12 acres, declared 5.08 acres to be the land in excess of the ceiling limits prescribed under the Act in the hands of the holder of the land.8. This issue then became the subject matter of the appeals. Eventually, the Prescribed Authority, by order dated 07/14.04.1981, declared 2.90 acres of land to be in excess in the hands of holder of the land. It was accordingly declared surplus for being vested in the State in accordance with the provisions of the Act.9. The appellants then again raised the issue in second round of litigation and tried to revive the proceedings by making an application for restoration in an appeal which was decided by the Appellate Authority under the Act. They were unsuccessful in their attempt and, therefore, carried the issue in the writ petition, which was dismissed by the High Court, giving rise to filing of the present appeal by way of special leave in this Court.10. It is with these background facts, the matter has come to this Court in this appeal.11. So, the short question is whether the High Court was justified in dismissing the appellants? writ petition.12. Heard Mr. Anurag Dubey, learned counsel for the appellants and Mr. Tanmaya Agarwal, learned counsel for the respondent-State.13. Learned counsel for the appellants had mainly argued three points before the High Court unsuccessfully. Those three points were also reiterated before this Court.14. First, the Appellate Authority while passing the order, which was impugned in the writ petition, did not ensure compliance of the earlier order of the High Court, which was passed in the appellants? writ petition; Second, the appeal before the Appellate Authority under the Act was not filed by the appellants (writ petitioners) but was filed by some imposter on their behalf and, therefore, inquiry on this question should have been held; and Third, an issue regarding one order as to whether it was merged in the appellate order or not and what is its effect should also have been examined in its proper perspective.15. In reply, learned counsel for the respondent-State supported the impugned order and prayed for dismissal of the appeal.16. Having heard the learned counsel for the parties at length and on perusing the record in the light of list of dates filed by the parties, we find no merit in this appeal.17. The High Court has repelled these arguments and, in our view, rightly.18. We find that the litigation, out of which this appeal arises and now which is brought to this Court, is pursued by the appellants only with a view to keep the issue relating to vesting of the land in question alive which stood vested in the State in the year 1981 itself.19. Indeed, in our view, the excess land measuring 2.90 acres is no more available having stood vested with the State in 1981. There is no ground available to the appellants to revive the ceiling proceedings by taking recourse to filing one application or the other including the one under consideration.20. The question, as to whether the restoration application should have been allowed or not, was gone into by the Courts below and was rightly rejected. Similarly, the question as to whether the appeal before the Appellate Authority under the Act was filed by some imposter, as alleged by the appellants, was wholly misconceived and was rightly not entertained, and lastly, the issue of merger of order was equally misplaced having no bearing on the issue. All the three arguments, in our view, had no factual and legal foundation. They were, therefore, rightly rejected by the High Court. | 0[ds]16. Having heard the learned counsel for the parties at length and on perusing the record in the light of list of dates filed by the parties, we find no merit in this appeal.17. The High Court has repelled these arguments and, in our view, rightly.18. We find that the litigation, out of which this appeal arises and now which is brought to this Court, is pursued by the appellants only with a view to keep the issue relating to vesting of the land in question alive which stood vested in the State in the year 1981 itself.19. Indeed, in our view, the excess land measuring 2.90 acres is no more available having stood vested with the State in 1981. There is no ground available to the appellants to revive the ceiling proceedings by taking recourse to filing one application or the other including the one under consideration.20. The question, as to whether the restoration application should have been allowed or not, was gone into by the Courts below and was rightly rejected. Similarly, the question as to whether the appeal before the Appellate Authority under the Act was filed by some imposter, as alleged by the appellants, was wholly misconceived and was rightly not entertained, and lastly, the issue of merger of order was equally misplaced having no bearing on the issue. All the three arguments, in our view, had no factual and legal foundation. They were, therefore, rightly rejected by the High Court. | 0 | 914 | 277 | ### 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:
Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 05.01.2008 passed by the High Court of Judicature at Allahabad in C.M.W.P. No.359 of 2008 whereby the High Court dismissed the writ petition filed by the appellants herein.2. This appeal involves a short point as would be clear from a few facts mentioned hereinbelow.3. The matter relates to the land, which was subject matter of the ceiling proceedings under the U.P. Imposition of Ceiling of Land Holdings Act, 1960 (hereinafter referred to as "the Act?).4. One Ram Bharose Lal originally held the land in question. The proceedings in relation to his entitlement to hold the land after the Act came into force began on 30.01.1974 with issuance of notice to him under Section 10 (2) of the Act.5. Since 30.01.1974 till passing of the impugned order by the High Court on 05.01.2000, out of which this appeal arises, the matter relating to the land in question was being dealt with either by the Prescribed Authority or the Appellate Authority under the Act and then by the High Court in its writ jurisdiction in several rounds.6. On the death of the original holder, his wife– appellant No.1 and son-appellant No.2 herein have been pursuing the matter.7. By order dated 30.09.1974, the Prescribed Authority, out of the total land measuring 23.12 acres, declared 5.08 acres to be the land in excess of the ceiling limits prescribed under the Act in the hands of the holder of the land.8. This issue then became the subject matter of the appeals. Eventually, the Prescribed Authority, by order dated 07/14.04.1981, declared 2.90 acres of land to be in excess in the hands of holder of the land. It was accordingly declared surplus for being vested in the State in accordance with the provisions of the Act.9. The appellants then again raised the issue in second round of litigation and tried to revive the proceedings by making an application for restoration in an appeal which was decided by the Appellate Authority under the Act. They were unsuccessful in their attempt and, therefore, carried the issue in the writ petition, which was dismissed by the High Court, giving rise to filing of the present appeal by way of special leave in this Court.10. It is with these background facts, the matter has come to this Court in this appeal.11. So, the short question is whether the High Court was justified in dismissing the appellants? writ petition.12. Heard Mr. Anurag Dubey, learned counsel for the appellants and Mr. Tanmaya Agarwal, learned counsel for the respondent-State.13. Learned counsel for the appellants had mainly argued three points before the High Court unsuccessfully. Those three points were also reiterated before this Court.14. First, the Appellate Authority while passing the order, which was impugned in the writ petition, did not ensure compliance of the earlier order of the High Court, which was passed in the appellants? writ petition; Second, the appeal before the Appellate Authority under the Act was not filed by the appellants (writ petitioners) but was filed by some imposter on their behalf and, therefore, inquiry on this question should have been held; and Third, an issue regarding one order as to whether it was merged in the appellate order or not and what is its effect should also have been examined in its proper perspective.15. In reply, learned counsel for the respondent-State supported the impugned order and prayed for dismissal of the appeal.16. Having heard the learned counsel for the parties at length and on perusing the record in the light of list of dates filed by the parties, we find no merit in this appeal.17. The High Court has repelled these arguments and, in our view, rightly.18. We find that the litigation, out of which this appeal arises and now which is brought to this Court, is pursued by the appellants only with a view to keep the issue relating to vesting of the land in question alive which stood vested in the State in the year 1981 itself.19. Indeed, in our view, the excess land measuring 2.90 acres is no more available having stood vested with the State in 1981. There is no ground available to the appellants to revive the ceiling proceedings by taking recourse to filing one application or the other including the one under consideration.20. The question, as to whether the restoration application should have been allowed or not, was gone into by the Courts below and was rightly rejected. Similarly, the question as to whether the appeal before the Appellate Authority under the Act was filed by some imposter, as alleged by the appellants, was wholly misconceived and was rightly not entertained, and lastly, the issue of merger of order was equally misplaced having no bearing on the issue. All the three arguments, in our view, had no factual and legal foundation. They were, therefore, rightly rejected by the High Court.
### Response:
0
### Explanation:
16. Having heard the learned counsel for the parties at length and on perusing the record in the light of list of dates filed by the parties, we find no merit in this appeal.17. The High Court has repelled these arguments and, in our view, rightly.18. We find that the litigation, out of which this appeal arises and now which is brought to this Court, is pursued by the appellants only with a view to keep the issue relating to vesting of the land in question alive which stood vested in the State in the year 1981 itself.19. Indeed, in our view, the excess land measuring 2.90 acres is no more available having stood vested with the State in 1981. There is no ground available to the appellants to revive the ceiling proceedings by taking recourse to filing one application or the other including the one under consideration.20. The question, as to whether the restoration application should have been allowed or not, was gone into by the Courts below and was rightly rejected. Similarly, the question as to whether the appeal before the Appellate Authority under the Act was filed by some imposter, as alleged by the appellants, was wholly misconceived and was rightly not entertained, and lastly, the issue of merger of order was equally misplaced having no bearing on the issue. All the three arguments, in our view, had no factual and legal foundation. They were, therefore, rightly rejected by the High Court.
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Thakur Virendra Singh Vs. Vimal Kumar | non-appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30, ), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daughter of Rampratap. It is also significant that though Rampratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non-appearance of Rampratap as a witness for the respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P--10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukr avariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P-10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P-10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know h im. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/- were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organisation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellants own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress supported Maheshchandra Lala who was an independent candidate.11. The statement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non-Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news- paper hawker distributed copies of leaflet (Exh. P-10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Eve n if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of circumstantial evidence to establish the distribution of the leaflet (Exh. P-10) by the appellant or with his consent which cannot be easily ignored. These circumstances are-- (i) it was the-appellant who as already observed caused t he election leaflet (Exh. P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain;-(ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Exh. P-10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf-let (Exh. P-10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the election campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P- 10) emanated from a source which had no connection with the appellant or his election agent.Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.12. | 0[ds]It is no doubt true that the respondent has not been able to produce Rampratap in proof of his allegation but it cannot be lost sight of that the former did summon the latter as his witness but he did not appear despite service the course of the statement made by him as his own witness, the respondent has explained that on Ramprataps omission to appear before the Court as his witness despite service, he contacted the latter to enquire about the reason for his non-appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30, ), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daughter of Rampratap. It is also significant that though Rampratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non-appearance of Rampratap as a witness for the respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P--10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukr avariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P-10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P-10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know h im. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/- were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organisation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellants own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress supported Maheshchandra Lala who was an independentstatement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non-Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news- paper hawker distributed copies of leaflet (Exh. P-10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Eve n if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of circumstantial evidence to establish the distribution of the leaflet (Exh. P-10) by the appellant or with his consent which cannot be easily ignored. These circumstances are-- (i) it was the-appellant who as already observed caused t he election leaflet (Exh. P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain;-(ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Exh. P-10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf-let (Exh. P-10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the election campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P- 10) emanated from a source which had no connection with the appellant or his election agent.Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election. | 0 | 6,218 | 1,241 | ### 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:
non-appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30, ), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daughter of Rampratap. It is also significant that though Rampratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non-appearance of Rampratap as a witness for the respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P--10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukr avariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P-10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P-10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know h im. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/- were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organisation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellants own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress supported Maheshchandra Lala who was an independent candidate.11. The statement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non-Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news- paper hawker distributed copies of leaflet (Exh. P-10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Eve n if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of circumstantial evidence to establish the distribution of the leaflet (Exh. P-10) by the appellant or with his consent which cannot be easily ignored. These circumstances are-- (i) it was the-appellant who as already observed caused t he election leaflet (Exh. P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain;-(ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Exh. P-10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf-let (Exh. P-10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the election campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P- 10) emanated from a source which had no connection with the appellant or his election agent.Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.12.
### Response:
0
### Explanation:
reason for his non-appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30, ), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daughter of Rampratap. It is also significant that though Rampratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non-appearance of Rampratap as a witness for the respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P--10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukr avariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P-10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P-10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know h im. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/- were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organisation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellants own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress supported Maheshchandra Lala who was an independentstatement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non-Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news- paper hawker distributed copies of leaflet (Exh. P-10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Eve n if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of circumstantial evidence to establish the distribution of the leaflet (Exh. P-10) by the appellant or with his consent which cannot be easily ignored. These circumstances are-- (i) it was the-appellant who as already observed caused t he election leaflet (Exh. P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain;-(ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Exh. P-10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf-let (Exh. P-10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the election campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P- 10) emanated from a source which had no connection with the appellant or his election agent.Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.
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State Of Mysore Vs. Yaddalam Lakshminarasimhaiah Setty And Sons | the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State; and for the purposes of making any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.9. Levy and collection of tax.- (1) The tax payable by any dealer under this Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-s. (2).(2) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax payable by a dealer under this Act in the same manner as the tax-on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references penalties and compounding of offences, shall apply accordingly.(3) The proceeds (reduced by the cost of collection) in any financial year of any tax levied and collected under this Act in any State on behalf of the Government of lndia shall, except in so far as those proceeds represent proceeds attributable to Union territories, be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India. "16. Section 6 of the Central Act is the charging section. Subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him. It will be noticed that the liability is not absolute but subject to the other provisions of the Act. If the effect of another provision is to take away the liability, effect will have to be given to it. Section 8 prescribes the rates of tax to be levied. It is common ground that S. 8(1) does not apply to the facts of the case, but the proviso is important as it indicates that in some cases falling within the proviso the rate may be nil. In other words, notwithstanding S. 6, the dealer may not be liable to pay any tax if he comes within the proviso to S. 8(1). It follows that the scheme of the Act is not that every transaction in inter-State trade must bear some tax.17. Section 8(2) provides for the method of calculating the tax; under that sub-section, the tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State. The expression in the manner" may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But S. 9 (1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub- s. (2); and sub-s. (2) of S. 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected. The expression "levy" means "impose". Under S. 5 (3) (a) of the Mysore Sales Tax Act, 1957, hereinafter called the State Act, tax shall be levied in the case of the sale of any of the goods mentioned in col. (2) of the Second Schedule by the first or the earliest of successive dealers in the State, who is liable to tax under that section, a tax at the rate specified in the corresponding entry of col. (3) of the said Schedule on the turnover of sales of such dealer in each year relating to such goods. When S. 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression "levied" in S. 9(1) of the Central Act refers to the expression "levied" in Section 5 (3) (a) of the State Act. There is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Central Act was passed to levy and collect sales-tax on interState sales to avoid confusion and conflict of jurisdictions; the tax is also collected only for the benefit of the State. Therefore, the construction we accept avoids the anomaly of the State collecting tax on powerloom textiles only at a single point and the Centre, through the agency of the State authorities, collecting the said tax for and on behalf of the State almulti-points.18. There has been considerable difference of opinion among the High Courts about the true construction of S. 8 (2), but none of them have relied on S.9 of the Central Act. Therefore, it is not necessary to refer to cases cited before us. | 1[ds]16. Section 6 of the Central Act is the charging section. Subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him. It will be noticed that the liability is not absolute but subject to the other provisions of the Act. If the effect of another provision is to take away the liability, effect will have to be given to it. Section 8 prescribes the rates of tax to be levied. It is common ground that S. 8(1) does not apply to the facts of the case, but the proviso is important as it indicates that in some cases falling within the proviso the rate may be nil. In other words, notwithstanding S. 6, the dealer may not be liable to pay any tax if he comes within the proviso to S. 8(1). It follows that the scheme of the Act is not that every transaction in inter-State trade must bear some tax.17. Section 8(2) provides for the method of calculating the tax; under that sub-section, the tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State. The expression in the manner" may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But S. 9 (1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub- s. (2); and sub-s. (2) of S. 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected. The expression "levy" means "impose". Under S. 5 (3) (a) of the Mysore Sales Tax Act, 1957, hereinafter called the State Act, tax shall be levied in the case of the sale of any of the goods mentioned in col. (2) of the Second Schedule by the first or the earliest of successive dealers in the State, who is liable to tax under that section, a tax at the rate specified in the corresponding entry of col. (3) of the said Schedule on the turnover of sales of such dealer in each year relating to such goods. When S. 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression "levied" in S. 9(1) of the Central Act refers to the expression "levied" in Section 5 (3) (a) of the State Act. There is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Central Act was passed to levy and collect sales-tax on interState sales to avoid confusion and conflict of jurisdictions; the tax is also collected only for the benefit of the State. Therefore, the construction we accept avoids the anomaly of the State collecting tax on powerloom textiles only at a single point and the Centre, through the agency of the State authorities, collecting the said tax for and on behalf of the State almulti-points.18. There has been considerable difference of opinion among the High Courts about the true construction of S. 8 (2), but none of them have relied on S.9 of the Central Act. Therefore, it is not necessary to refer to cases cited before us. | 1 | 4,025 | 792 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State; and for the purposes of making any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.9. Levy and collection of tax.- (1) The tax payable by any dealer under this Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-s. (2).(2) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax payable by a dealer under this Act in the same manner as the tax-on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references penalties and compounding of offences, shall apply accordingly.(3) The proceeds (reduced by the cost of collection) in any financial year of any tax levied and collected under this Act in any State on behalf of the Government of lndia shall, except in so far as those proceeds represent proceeds attributable to Union territories, be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India. "16. Section 6 of the Central Act is the charging section. Subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him. It will be noticed that the liability is not absolute but subject to the other provisions of the Act. If the effect of another provision is to take away the liability, effect will have to be given to it. Section 8 prescribes the rates of tax to be levied. It is common ground that S. 8(1) does not apply to the facts of the case, but the proviso is important as it indicates that in some cases falling within the proviso the rate may be nil. In other words, notwithstanding S. 6, the dealer may not be liable to pay any tax if he comes within the proviso to S. 8(1). It follows that the scheme of the Act is not that every transaction in inter-State trade must bear some tax.17. Section 8(2) provides for the method of calculating the tax; under that sub-section, the tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State. The expression in the manner" may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But S. 9 (1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub- s. (2); and sub-s. (2) of S. 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected. The expression "levy" means "impose". Under S. 5 (3) (a) of the Mysore Sales Tax Act, 1957, hereinafter called the State Act, tax shall be levied in the case of the sale of any of the goods mentioned in col. (2) of the Second Schedule by the first or the earliest of successive dealers in the State, who is liable to tax under that section, a tax at the rate specified in the corresponding entry of col. (3) of the said Schedule on the turnover of sales of such dealer in each year relating to such goods. When S. 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression "levied" in S. 9(1) of the Central Act refers to the expression "levied" in Section 5 (3) (a) of the State Act. There is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Central Act was passed to levy and collect sales-tax on interState sales to avoid confusion and conflict of jurisdictions; the tax is also collected only for the benefit of the State. Therefore, the construction we accept avoids the anomaly of the State collecting tax on powerloom textiles only at a single point and the Centre, through the agency of the State authorities, collecting the said tax for and on behalf of the State almulti-points.18. There has been considerable difference of opinion among the High Courts about the true construction of S. 8 (2), but none of them have relied on S.9 of the Central Act. Therefore, it is not necessary to refer to cases cited before us.
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1
### Explanation:
16. Section 6 of the Central Act is the charging section. Subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him. It will be noticed that the liability is not absolute but subject to the other provisions of the Act. If the effect of another provision is to take away the liability, effect will have to be given to it. Section 8 prescribes the rates of tax to be levied. It is common ground that S. 8(1) does not apply to the facts of the case, but the proviso is important as it indicates that in some cases falling within the proviso the rate may be nil. In other words, notwithstanding S. 6, the dealer may not be liable to pay any tax if he comes within the proviso to S. 8(1). It follows that the scheme of the Act is not that every transaction in inter-State trade must bear some tax.17. Section 8(2) provides for the method of calculating the tax; under that sub-section, the tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State. The expression in the manner" may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But S. 9 (1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub- s. (2); and sub-s. (2) of S. 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected. The expression "levy" means "impose". Under S. 5 (3) (a) of the Mysore Sales Tax Act, 1957, hereinafter called the State Act, tax shall be levied in the case of the sale of any of the goods mentioned in col. (2) of the Second Schedule by the first or the earliest of successive dealers in the State, who is liable to tax under that section, a tax at the rate specified in the corresponding entry of col. (3) of the said Schedule on the turnover of sales of such dealer in each year relating to such goods. When S. 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression "levied" in S. 9(1) of the Central Act refers to the expression "levied" in Section 5 (3) (a) of the State Act. There is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Central Act was passed to levy and collect sales-tax on interState sales to avoid confusion and conflict of jurisdictions; the tax is also collected only for the benefit of the State. Therefore, the construction we accept avoids the anomaly of the State collecting tax on powerloom textiles only at a single point and the Centre, through the agency of the State authorities, collecting the said tax for and on behalf of the State almulti-points.18. There has been considerable difference of opinion among the High Courts about the true construction of S. 8 (2), but none of them have relied on S.9 of the Central Act. Therefore, it is not necessary to refer to cases cited before us.
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State Of Mysore Vs. Anant Vinayak Patwardhan | a position to be of any assistance to the respondent on the basis of his application. The Assistant Commissioner passed an order granting a sum of Rs. 5172-12-0 being three times the annual sum of Rs. 1724-4-0 which the respondent was receiving. The respondent then filed an appeal to the Mysore Revenue Appellate Tribunal as by that time the area had become part of the Mysore State. In that appeal the mentioned that through mistake his name has been recorded as holder of the Tainat cash allowance for life only. He also men-tioned that his application to the Rajasaheb of Jamkhandi for correction of the mistake was still pending even thought the State of Jamkhandi was merged. The Tribunal dealt with the argument before it on behalf of the respondent to the effect that the ruler of Jamkhandi had no power to change the cash allowance to one for life as according to his own earlier order passed in the year 1909-10 it was permanent and in the view that the ruler of Jamkhandi had sovereign powers and was the fountain head of all source of authority, that is, executive, judiciary and legislature, he could change the Tainat cash allowance at his sweet will and pleasure, dismissed the appeal. The respondent thereupon filed a writ petition No. 777 before the High Court of Mysore. There also he stated that through mistake his name was recorded as the holder of the cash allowance for life only, and also urged that the ruler of the Jamkhandi State had no power to interfere with the Tainat cash allowance. The High Court did not deal with the question whether the Ruler of Jamkhandi had, in 1944, the power to convert a hereditary grant to one for life directed that a sum of Rs. 14,070/- being seven times the annual cash allowance of Rupees 2,010/- be paid to the respondent on the basis that the grant was hereditary. This appeal is against that judgment and order of the High Court.2. We are of opinion that clearly the decision of the Mysore High Court is wrong. In ameer-un-Nissa Begum v. Mahboob Begum (AIR 1955 SC 352 ) this Court stated the constitutional position of the Nizam of Hyderabad in these words:"...It cannot be dispute that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The `Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law;- may, they would override all other laws which were in conflict with them. So long as a particular `Firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later `Farman at any time that the Nizam willed.......... ......... ..........The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however, between the one and the other would from the very nature of things be not justified or even possible."That sets out the constitutional position of the ruler of every one of the Indian States before their integration with the rest of India and coming into force of the Constitution of India. It follows therefore that if the ruler of Jamkhandi had charged the permanent cash allowance granted to the respondents ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance itself shows that those rules cancelled the earlier rules and those rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former ruler of Jamkhandi after the State was merged in Bombay State will not help him. The ruler had by that time lost all his powers. The decision of the Mysore Revenue Appellant Tribunal is, therefore, right.3. There is only one small point which has got to be mentioned. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows the allowance at Rupees 2010-00 minus Rs. 240.00 being commutation amount. These allowances being service allowances, the deduction is for the payment to the person who was doing the service in place of the cash allowance holder. That is why what was being paid to the respondent year after year was the cash allowance minus commutation amount. The Mysore High Court was, therefore, wrong in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the compensation payable to the respondent.4. We must mention that when this appeal was taken up for hearing Mr. Datar appearing for the respondent contended that as this Court in M .P. State v. Ranojirao (1968-3 SCR 489) = (AIR 1968 SC 1053 ) has held that the Madhya Pradesh Abolition of Cash Grants Act violates Art. 19 (1) (f) or Art. 31 (2) of the Constitution, and so struck it down, the Bombay Merged Territories Miscellaneous Alienation Abolition Act is also liable to be struck down on the same ground. He, therefore, wanted that he should be given the liberty to move the High Court for striking down the Act under consideration in this case. We do not propose to express any opinion as to whether it would be open to him to do so in the background of this case. There is nothing to prevent him from filing an application if he is so advised. | 1[ds]2. We are of opinion that clearly the decision of the Mysore High Court issets out the constitutional position of the ruler of every one of the Indian States before their integration with the rest of India and coming into force of the Constitution of India. It follows therefore that if the ruler of Jamkhandi had charged the permanent cash allowance granted to the respondents ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance itself shows that those rules cancelled the earlier rules and those rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former ruler of Jamkhandi after the State was merged in Bombay State will not help him. The ruler had by that time lost all his powers. The decision of the Mysore Revenue Appellant Tribunal is, therefore, right.3. There is only one small point which has got to be mentioned. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows the allowance at Rupees 2010-00 minus Rs. 240.00 being commutation amount. These allowances being service allowances, the deduction is for the payment to the person who was doing the service in place of the cash allowance holder. That is why what was being paid to the respondent year after year was the cash allowance minus commutation amount. The Mysore High Court was, therefore, wrong in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the compensation payable to the respondent. | 1 | 1,482 | 302 | ### 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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a position to be of any assistance to the respondent on the basis of his application. The Assistant Commissioner passed an order granting a sum of Rs. 5172-12-0 being three times the annual sum of Rs. 1724-4-0 which the respondent was receiving. The respondent then filed an appeal to the Mysore Revenue Appellate Tribunal as by that time the area had become part of the Mysore State. In that appeal the mentioned that through mistake his name has been recorded as holder of the Tainat cash allowance for life only. He also men-tioned that his application to the Rajasaheb of Jamkhandi for correction of the mistake was still pending even thought the State of Jamkhandi was merged. The Tribunal dealt with the argument before it on behalf of the respondent to the effect that the ruler of Jamkhandi had no power to change the cash allowance to one for life as according to his own earlier order passed in the year 1909-10 it was permanent and in the view that the ruler of Jamkhandi had sovereign powers and was the fountain head of all source of authority, that is, executive, judiciary and legislature, he could change the Tainat cash allowance at his sweet will and pleasure, dismissed the appeal. The respondent thereupon filed a writ petition No. 777 before the High Court of Mysore. There also he stated that through mistake his name was recorded as the holder of the cash allowance for life only, and also urged that the ruler of the Jamkhandi State had no power to interfere with the Tainat cash allowance. The High Court did not deal with the question whether the Ruler of Jamkhandi had, in 1944, the power to convert a hereditary grant to one for life directed that a sum of Rs. 14,070/- being seven times the annual cash allowance of Rupees 2,010/- be paid to the respondent on the basis that the grant was hereditary. This appeal is against that judgment and order of the High Court.2. We are of opinion that clearly the decision of the Mysore High Court is wrong. In ameer-un-Nissa Begum v. Mahboob Begum (AIR 1955 SC 352 ) this Court stated the constitutional position of the Nizam of Hyderabad in these words:"...It cannot be dispute that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The `Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law;- may, they would override all other laws which were in conflict with them. So long as a particular `Firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later `Farman at any time that the Nizam willed.......... ......... ..........The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however, between the one and the other would from the very nature of things be not justified or even possible."That sets out the constitutional position of the ruler of every one of the Indian States before their integration with the rest of India and coming into force of the Constitution of India. It follows therefore that if the ruler of Jamkhandi had charged the permanent cash allowance granted to the respondents ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance itself shows that those rules cancelled the earlier rules and those rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former ruler of Jamkhandi after the State was merged in Bombay State will not help him. The ruler had by that time lost all his powers. The decision of the Mysore Revenue Appellant Tribunal is, therefore, right.3. There is only one small point which has got to be mentioned. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows the allowance at Rupees 2010-00 minus Rs. 240.00 being commutation amount. These allowances being service allowances, the deduction is for the payment to the person who was doing the service in place of the cash allowance holder. That is why what was being paid to the respondent year after year was the cash allowance minus commutation amount. The Mysore High Court was, therefore, wrong in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the compensation payable to the respondent.4. We must mention that when this appeal was taken up for hearing Mr. Datar appearing for the respondent contended that as this Court in M .P. State v. Ranojirao (1968-3 SCR 489) = (AIR 1968 SC 1053 ) has held that the Madhya Pradesh Abolition of Cash Grants Act violates Art. 19 (1) (f) or Art. 31 (2) of the Constitution, and so struck it down, the Bombay Merged Territories Miscellaneous Alienation Abolition Act is also liable to be struck down on the same ground. He, therefore, wanted that he should be given the liberty to move the High Court for striking down the Act under consideration in this case. We do not propose to express any opinion as to whether it would be open to him to do so in the background of this case. There is nothing to prevent him from filing an application if he is so advised.
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2. We are of opinion that clearly the decision of the Mysore High Court issets out the constitutional position of the ruler of every one of the Indian States before their integration with the rest of India and coming into force of the Constitution of India. It follows therefore that if the ruler of Jamkhandi had charged the permanent cash allowance granted to the respondents ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance itself shows that those rules cancelled the earlier rules and those rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former ruler of Jamkhandi after the State was merged in Bombay State will not help him. The ruler had by that time lost all his powers. The decision of the Mysore Revenue Appellant Tribunal is, therefore, right.3. There is only one small point which has got to be mentioned. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows the allowance at Rupees 2010-00 minus Rs. 240.00 being commutation amount. These allowances being service allowances, the deduction is for the payment to the person who was doing the service in place of the cash allowance holder. That is why what was being paid to the respondent year after year was the cash allowance minus commutation amount. The Mysore High Court was, therefore, wrong in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the compensation payable to the respondent.
|
GANESAN Vs. STATE REP. BY ITS INSPECTOR OF POLICE | if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 . 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. (Emphasis supplied) 9.2 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 9.3 Who can be said to be a sterling witness, has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under: 22. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in the civilized society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act. 10. Now so far as the amount of compensation awarded by the learned trial Court is concerned, the High Court has modified the same and has directed the State to pay the compensation to the victim and thereafter to recover the same from the accused under the provisions of the land revenue, if it finds that the accused has sufficient means. It is the case on behalf of the accused that the accused is very poor and has no property. If that be so, he is not to worry. The aforesaid has been taken care by the High Court by modifying the judgment and order passed by the learned trial Court. 11. Now so far as the reliance placed upon the decision of this Court in the case of Vinod Kumar (supra) and the reliance placed upon Order 41 Rule 31 CPC is concerned, as we ourselves have heard the appeal on merits and considering the fact that out of three years R.I., the appellant has already undergone two years and three months (approximately), the said decision shall not be of any assistance to the accused. | 0[ds]Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in the civilized society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act.10. Now so far as the amount of compensation awarded by the learned trial Court is concerned, the High Court has modified the same and has directed the State to pay the compensation to the victim and thereafter to recover the same from the accused under the provisions of the land revenue, if it finds that the accused has sufficient means.It is the case on behalf of the accused that the accused is very poor and has no property. If that be so, he is not to worry. The aforesaid has been taken care by the High Court by modifying the judgment and order passed by the learned trial Court.However, it is required to be noted that as such nothing in on record that the legal aid counsel was not having any papers. There cannot be any dispute with respect to proposition of law laid down by this Court in the case of Anokhilal (supra)11. Now so far as the reliance placed upon the decision of this Court in the case of Vinod Kumar (supra) and the reliance placed upon Order 41 Rule 31 CPC is concerned, as we ourselves have heard the appeal on merits and considering the fact that out of three years R.I., the appellant has already undergone two years and three months (approximately), the said decision shall not be of any assistance to the accused.9. In the present case, the appellant-accused has been convicted by the learned trial Court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial Court as well as the relevant evidence on record, more particularly the deposition of PW1-father of the victim, PW2-mother of the victim and PW3-victim herself. It is true that PW2-mother of the victim has turned hostile. However, PW3-victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW3 – victim. PW3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.9.1 Whether, in the case involving sexual harassment, molestation etc., can there be conviction on the sole evidence of the prosecutrix, in the case of Vijay alias Chinee (supra), it is observed in paragraphs 9 to 14 as under:9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another persons lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...xxx xxx xxx21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.(emphasis in original)12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 .14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.(Emphasis supplied)9.2 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.9.3 Who can be said to be a sterling witness, has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under:22. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. | 0 | 4,544 | 2,869 | ### 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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if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 . 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. (Emphasis supplied) 9.2 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 9.3 Who can be said to be a sterling witness, has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under: 22. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in the civilized society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act. 10. Now so far as the amount of compensation awarded by the learned trial Court is concerned, the High Court has modified the same and has directed the State to pay the compensation to the victim and thereafter to recover the same from the accused under the provisions of the land revenue, if it finds that the accused has sufficient means. It is the case on behalf of the accused that the accused is very poor and has no property. If that be so, he is not to worry. The aforesaid has been taken care by the High Court by modifying the judgment and order passed by the learned trial Court. 11. Now so far as the reliance placed upon the decision of this Court in the case of Vinod Kumar (supra) and the reliance placed upon Order 41 Rule 31 CPC is concerned, as we ourselves have heard the appeal on merits and considering the fact that out of three years R.I., the appellant has already undergone two years and three months (approximately), the said decision shall not be of any assistance to the accused.
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### Explanation:
her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...xxx xxx xxx21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.(emphasis in original)12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 .14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.(Emphasis supplied)9.2 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.9.3 Who can be said to be a sterling witness, has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under:22. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality.
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Star Company Limited Vs. Commissioner Of Income Tax (Central) Calcutta | is noteworthy that the question which was, referred is couched in general terms and was not limited to or circumscribed by the reasons which had been given by the Tribunal against the assessee. The question of law on which reference can be made must arise out of the order of the Tribunal. The order which was made in the present case was in favour of the department and against the assessee. It is true that certain reasons which had appealed to the Income-tax Officer and the Appellate Assistant Commissioner were not accepted by the Appellate Tribunal but it had come to the following conclusion which was material for the disposal of the appeal:"We accordingly uphold the view taken by the authorities below that the loss of Rs. 1,11,818 incurred on the sale of 1575 preference shares of Fort William Jute Co., Ltd. was not a loss that arose in course of the appellants business in share dealing though for different reasons."The question which was referred was framed in the light of the final conclusion and in our judgment it was not necessary for the department to apply for and obtain a reference on a question arising from the reasons given by the Tribunal in support of its conclusion in favour of the department.7. It has next been contended on behalf of the appellant that where a question is one of mixed facts and law the facts as found by the Tribunal must be accepted as correct. The Tribunal had negatived the finding of the Income-tax Officer and the Appellate Assistant Commissioner that the preference shares had been acquired by the assessee as a pawn in the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. It was, therefore, not open to the High Court to come to the same conclusion by not treating the finding of the Appellate Tribunal as final. Our attention has been invited to the observations in Commissioner of Income-tax, Bombay City I v. Greaves and Co., Ltd., (1968) 68 ITR 200 (SC), that it is not open to the High Court in a reference under Section 66 (1) of the Income-tax Act 1922 to embark upon a re-appraisal of the evidence and to arrive at findings of fact contrary to those of the Tribunal. The finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse, but it is not open to a party to challenge such a finding unless reference has been made of a specific question concerning that finding. In Oriental Investment Co., P. Ltd. Commissioner of Income-tax, 72 ITR 408 =(AIR 1969 SC 460 ) it has been reiterated that in dealing with findings on questions of mixed law and fact, the High Court must accept the findings of the Tribunal on the primary question of fact as final although it is open to the High Court to examine whether the tribunal had applied the relevant legal principles correctly. It is argued that the High Court has not characterised the aforesaid finding of the Appellate Tribunal as perverse or arbitrary and once that finding is accepted, there would be no justification for holding that the assessee had been made a pawn in the matter of the scheme of transfer of the managing agency of Fort William Jute Co., Ltd., by Mugneeram Bangur and Co., or Bangur Brothers Ltd. In any case there were several facts which showed that the assessee was not privy or party to the aforesaid scheme. It did not acquire any interest in the managing agency nor was it a subsidiary or associate of Mugneeram Bangur group of concerns. The assessee was connected with the Bangurs only to the extent that out of its four Directors two of the Directors were Bangurs.8. In our opinion even if the conclusion of the High Court on the point mentioned above is not taken into consideration the question which was referred had to be answered against the assessee. On admitted and proved facts there can be no manner of doubt that the assessee did not acquire the preference shares in the ordinary course of business. These facts may be restated as follows:(1) The market rate of the preference shares remained constant at the figure of Rs. 119 between April 16, 1952 and May 21, 1952.(2) On May 21, 1952 the agreement between Mugneeram Bangur and Kettlewell Bullen and Co. was entered into for purchasing the entire holding of the managing agency company in the managed company.(3) On May 22, 1952, 1620 shares were acquired by the assessee from Mugneeram Bangur and Co., at the rate of Rs. 186 per share. 50 more shares were acquired on May 27, 1952 at Rs. 184 per shar. The shares were obviously acquired at a price which was very much higher than the market price which prevailed only a day before they were purchased by the assessee.(4) Out of 1670 shares taken over by the assessee from Mugneeram Bangur and Co. 1575 were sold back to the same company at the rate of Rs. 115 per share.(5) The profit and loss account for the assessment year 1954-55 showed that the dealings in other shares were of comparatively much lesser value than the shares in question. The profits and losses which had been made and incurred on account of the other shares were also comparatively of minimal nature.(6) The shares of Fort William Jute Co. Ltd., were purchased by the assessee by obtaining an overdraft from a Bank.9. All the above facts ad circumstances which have some extraordinary features lead to the irresistible conclusion that whatever the motives which entered into the acquisition of the shares, they were certainly not bought and sold in ordinary course of business of the assessee as a dealer in shares. The answer to the question must, therefore, be in the negative and against the assessee and it was rightly so returned by the High Court. | 0[ds]It is noteworthy that the question which was, referred is couched in general terms and was not limited to or circumscribed by the reasons which had been given by the Tribunal against the assessee. The question of law on which reference can be made must arise out of the order of the Tribunal. The order which was made in the present case was in favour of the department and against the assessee. It is true that certain reasons which had appealed to the Income-tax Officer and the Appellate Assistant Commissioner were not accepted by the Appellate Tribunal but it had come to the following conclusion which was material for the disposal of theIn our opinion even if the conclusion of the High Court on the point mentioned above is not taken into consideration the question which was referred had to be answered against the assessee. On admitted and proved facts there can be no manner of doubt that the assessee did not acquire the preference shares in the ordinary course of business.All the above facts ad circumstances which have some extraordinary features lead to the irresistible conclusion that whatever the motives which entered into the acquisition of the shares, they were certainly not bought and sold in ordinary course of business of the assessee as a dealer in shares. The answer to the question must, therefore, be in the negative and against the assessee and it was rightly so returned by the Highfacts may be restated asThe market rate of the preference shares remained constant at the figure of Rs. 119 between April 16, 1952 and May 21, 1952.(2) On May 21, 1952 the agreement between Mugneeram Bangur and Kettlewell Bullen and Co. was entered into for purchasing the entire holding of the managing agency company in the managed company.(3) On May 22, 1952, 1620 shares were acquired by the assessee from Mugneeram Bangur and Co., at the rate of Rs. 186 per share. 50 more shares were acquired on May 27, 1952 at Rs. 184 per shar. The shares were obviously acquired at a price which was very much higher than the market price which prevailed only a day before they were purchased by the assessee.(4) Out of 1670 shares taken over by the assessee from Mugneeram Bangur and Co. 1575 were sold back to the same company at the rate of Rs. 115 per share.(5) The profit and loss account for the assessment year 1954-55 showed that the dealings in other shares were of comparatively much lesser value than the shares in question. The profits and losses which had been made and incurred on account of the other shares were also comparatively of minimal nature.(6) The shares of Fort William Jute Co. Ltd., were purchased by the assessee by obtaining an overdraft from aTribunal had negatived the finding of theOfficer and the Appellate Assistant Commissioner that the preference shares had been acquired by the assessee as a pawn in the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. It was, therefore, not open to the High Court to come to the same conclusion by not treating the finding of the Appellate Tribunal as final. Our attention has been invited to the observations in Commissioner ofBombay City I v. Greaves and Co., Ltd., (1968) 68 ITR 200 (SC), that it is not open to the High Court in a reference under Section 66 (1) of theAct 1922 to embark upon aof the evidence and to arrive at findings of fact contrary to those of the Tribunal. The finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse, but it is not open to a party to challenge such a finding unless reference has been made of a specific question concerning that finding. In Oriental Investment Co., P. Ltd. Commissioner of72 ITR 408 =(AIR 1969 SC 460 ) it has been reiterated that in dealing with findings on questions of mixed law and fact, the High Court must accept the findings of the Tribunal on the primary question of fact as final although it is open to the High Court to examine whether the tribunal had applied the relevant legal principles correctly. It is argued that the High Court has not characterised the aforesaid finding of the Appellate Tribunal as perverse or arbitrary and once that finding is accepted, there would be no justification for holding that the assessee had been made a pawn in the matter of the scheme of transfer of the managing agency of Fort William Jute Co., Ltd., by Mugneeram Bangur and Co., or Bangur Brothers Ltd. In any case there were several facts which showed that the assessee was not privy or party to the aforesaid scheme. It did not acquire any interest in the managing agency nor was it a subsidiary or associate of Mugneeram Bangur group of concerns. The assessee was connected with the Bangurs only to the extent that out of its four Directors two of the Directors were Bangurs. | 0 | 2,827 | 924 | ### 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:
is noteworthy that the question which was, referred is couched in general terms and was not limited to or circumscribed by the reasons which had been given by the Tribunal against the assessee. The question of law on which reference can be made must arise out of the order of the Tribunal. The order which was made in the present case was in favour of the department and against the assessee. It is true that certain reasons which had appealed to the Income-tax Officer and the Appellate Assistant Commissioner were not accepted by the Appellate Tribunal but it had come to the following conclusion which was material for the disposal of the appeal:"We accordingly uphold the view taken by the authorities below that the loss of Rs. 1,11,818 incurred on the sale of 1575 preference shares of Fort William Jute Co., Ltd. was not a loss that arose in course of the appellants business in share dealing though for different reasons."The question which was referred was framed in the light of the final conclusion and in our judgment it was not necessary for the department to apply for and obtain a reference on a question arising from the reasons given by the Tribunal in support of its conclusion in favour of the department.7. It has next been contended on behalf of the appellant that where a question is one of mixed facts and law the facts as found by the Tribunal must be accepted as correct. The Tribunal had negatived the finding of the Income-tax Officer and the Appellate Assistant Commissioner that the preference shares had been acquired by the assessee as a pawn in the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. It was, therefore, not open to the High Court to come to the same conclusion by not treating the finding of the Appellate Tribunal as final. Our attention has been invited to the observations in Commissioner of Income-tax, Bombay City I v. Greaves and Co., Ltd., (1968) 68 ITR 200 (SC), that it is not open to the High Court in a reference under Section 66 (1) of the Income-tax Act 1922 to embark upon a re-appraisal of the evidence and to arrive at findings of fact contrary to those of the Tribunal. The finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse, but it is not open to a party to challenge such a finding unless reference has been made of a specific question concerning that finding. In Oriental Investment Co., P. Ltd. Commissioner of Income-tax, 72 ITR 408 =(AIR 1969 SC 460 ) it has been reiterated that in dealing with findings on questions of mixed law and fact, the High Court must accept the findings of the Tribunal on the primary question of fact as final although it is open to the High Court to examine whether the tribunal had applied the relevant legal principles correctly. It is argued that the High Court has not characterised the aforesaid finding of the Appellate Tribunal as perverse or arbitrary and once that finding is accepted, there would be no justification for holding that the assessee had been made a pawn in the matter of the scheme of transfer of the managing agency of Fort William Jute Co., Ltd., by Mugneeram Bangur and Co., or Bangur Brothers Ltd. In any case there were several facts which showed that the assessee was not privy or party to the aforesaid scheme. It did not acquire any interest in the managing agency nor was it a subsidiary or associate of Mugneeram Bangur group of concerns. The assessee was connected with the Bangurs only to the extent that out of its four Directors two of the Directors were Bangurs.8. In our opinion even if the conclusion of the High Court on the point mentioned above is not taken into consideration the question which was referred had to be answered against the assessee. On admitted and proved facts there can be no manner of doubt that the assessee did not acquire the preference shares in the ordinary course of business. These facts may be restated as follows:(1) The market rate of the preference shares remained constant at the figure of Rs. 119 between April 16, 1952 and May 21, 1952.(2) On May 21, 1952 the agreement between Mugneeram Bangur and Kettlewell Bullen and Co. was entered into for purchasing the entire holding of the managing agency company in the managed company.(3) On May 22, 1952, 1620 shares were acquired by the assessee from Mugneeram Bangur and Co., at the rate of Rs. 186 per share. 50 more shares were acquired on May 27, 1952 at Rs. 184 per shar. The shares were obviously acquired at a price which was very much higher than the market price which prevailed only a day before they were purchased by the assessee.(4) Out of 1670 shares taken over by the assessee from Mugneeram Bangur and Co. 1575 were sold back to the same company at the rate of Rs. 115 per share.(5) The profit and loss account for the assessment year 1954-55 showed that the dealings in other shares were of comparatively much lesser value than the shares in question. The profits and losses which had been made and incurred on account of the other shares were also comparatively of minimal nature.(6) The shares of Fort William Jute Co. Ltd., were purchased by the assessee by obtaining an overdraft from a Bank.9. All the above facts ad circumstances which have some extraordinary features lead to the irresistible conclusion that whatever the motives which entered into the acquisition of the shares, they were certainly not bought and sold in ordinary course of business of the assessee as a dealer in shares. The answer to the question must, therefore, be in the negative and against the assessee and it was rightly so returned by the High Court.
### Response:
0
### Explanation:
It is noteworthy that the question which was, referred is couched in general terms and was not limited to or circumscribed by the reasons which had been given by the Tribunal against the assessee. The question of law on which reference can be made must arise out of the order of the Tribunal. The order which was made in the present case was in favour of the department and against the assessee. It is true that certain reasons which had appealed to the Income-tax Officer and the Appellate Assistant Commissioner were not accepted by the Appellate Tribunal but it had come to the following conclusion which was material for the disposal of theIn our opinion even if the conclusion of the High Court on the point mentioned above is not taken into consideration the question which was referred had to be answered against the assessee. On admitted and proved facts there can be no manner of doubt that the assessee did not acquire the preference shares in the ordinary course of business.All the above facts ad circumstances which have some extraordinary features lead to the irresistible conclusion that whatever the motives which entered into the acquisition of the shares, they were certainly not bought and sold in ordinary course of business of the assessee as a dealer in shares. The answer to the question must, therefore, be in the negative and against the assessee and it was rightly so returned by the Highfacts may be restated asThe market rate of the preference shares remained constant at the figure of Rs. 119 between April 16, 1952 and May 21, 1952.(2) On May 21, 1952 the agreement between Mugneeram Bangur and Kettlewell Bullen and Co. was entered into for purchasing the entire holding of the managing agency company in the managed company.(3) On May 22, 1952, 1620 shares were acquired by the assessee from Mugneeram Bangur and Co., at the rate of Rs. 186 per share. 50 more shares were acquired on May 27, 1952 at Rs. 184 per shar. The shares were obviously acquired at a price which was very much higher than the market price which prevailed only a day before they were purchased by the assessee.(4) Out of 1670 shares taken over by the assessee from Mugneeram Bangur and Co. 1575 were sold back to the same company at the rate of Rs. 115 per share.(5) The profit and loss account for the assessment year 1954-55 showed that the dealings in other shares were of comparatively much lesser value than the shares in question. The profits and losses which had been made and incurred on account of the other shares were also comparatively of minimal nature.(6) The shares of Fort William Jute Co. Ltd., were purchased by the assessee by obtaining an overdraft from aTribunal had negatived the finding of theOfficer and the Appellate Assistant Commissioner that the preference shares had been acquired by the assessee as a pawn in the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. It was, therefore, not open to the High Court to come to the same conclusion by not treating the finding of the Appellate Tribunal as final. Our attention has been invited to the observations in Commissioner ofBombay City I v. Greaves and Co., Ltd., (1968) 68 ITR 200 (SC), that it is not open to the High Court in a reference under Section 66 (1) of theAct 1922 to embark upon aof the evidence and to arrive at findings of fact contrary to those of the Tribunal. The finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse, but it is not open to a party to challenge such a finding unless reference has been made of a specific question concerning that finding. In Oriental Investment Co., P. Ltd. Commissioner of72 ITR 408 =(AIR 1969 SC 460 ) it has been reiterated that in dealing with findings on questions of mixed law and fact, the High Court must accept the findings of the Tribunal on the primary question of fact as final although it is open to the High Court to examine whether the tribunal had applied the relevant legal principles correctly. It is argued that the High Court has not characterised the aforesaid finding of the Appellate Tribunal as perverse or arbitrary and once that finding is accepted, there would be no justification for holding that the assessee had been made a pawn in the matter of the scheme of transfer of the managing agency of Fort William Jute Co., Ltd., by Mugneeram Bangur and Co., or Bangur Brothers Ltd. In any case there were several facts which showed that the assessee was not privy or party to the aforesaid scheme. It did not acquire any interest in the managing agency nor was it a subsidiary or associate of Mugneeram Bangur group of concerns. The assessee was connected with the Bangurs only to the extent that out of its four Directors two of the Directors were Bangurs.
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Sunil Kumar Roy Vs. M/S. Bhowra Kankanee Collieries Ltd. & Ors | Eastern Coal Co. Ltd., was granted a lease by the Zamindar of Jharia of certain land in mauza Gourkhanti in pargana Jharia. The Eastern Coal Co. erected buildings for manufacture of coke and also constructed office and the quarters for the staff and the labourers. On May 17, 1946 the Eastern Coal Co. sold the machineries on the demised land to the appellant and also granted a lease of the land on which the buildings stood to him. One of the terms of the lease was that royalty would be paid by the appellant at the rate of Re. 1/- per ton on dispatches of coke. The rate was subject to being revised from time to time by mutual arrangement between the parties "as may be justified by market condition". According to the appellant the Eastern Coal Company came to an arrangement in 1950 with him by which royalty on breeze coke was to be paid at the rate of 2 As. per ton. In December 1951 another arrangement was arrived at by which royalty on hard coke was to be paid at the reduced rate of 8 As. per ton instead of Re. 1 per ton stipulated in the lease dated May 17, 1946. This arrangement was to be given effect to from July 19, 1952. On January 5 1955 the Eastern Coal Company informed the appellant that the colliery had been sold to the Bhowra Kankanee Collieries Ltd. respondent No. 1, the sale being effective from January 1 1955. Respondent No. 1 claimed royalty on all despatches of coke including breeze coke at the rate of Re. 1 per ton. The appellant took up the position that by mutual agreement Eastern Coal Company had agreed to the royalty being payable on hard coke at the rate of 8 As. per ton and on breeze coke at 2 As. Per ton. The appellant paid to respondent No. 1 the amount calculated according to the above rates. 2. On January 31, 1956 respondent No. 1 instituted a suit against the appellant claiming a sum of Rs. 23,287-4-3 on account of royalty on all kinds of coke despatched during the period January 1955 to November 1955 at the rate of Re. 1 per ton. The Company further claimed damages at 6% per annum amounting to Rupees 1212-l1-9. The appellant contested the suit, his main plea being that by virtue of the arrangement arrived at with the Eastern Coal Company in accordance with the terms of the lease dated May 17, 1946 the royalty was payable at the rate of Re. 1 per ton for hard coke and 2 As. per ton for breeze coke. The trial Court accepted the plea of the appellant about reduction of the rates of royalty in terms of the arrangement arrived at with the Eastern Coal Company. It was further held that the document Exh A-4 in which this agreement or arrangement was incorporated did not require registration compulsorily and was admissible in evidence. The suit was dismissed. Respondent No. 1 preferred an appeal to the High Court. Although the Point with regard to the admissibility of Exh. A-4 for lack of registration was raised before the High Court it did not give any decision on it. The judgment of the High Court rested on the finding that the appellant had failed to prove that the reduction in the rate of royalty had been given effect to from July 1952. 3. Mr. B. Sen for the appellant sought to raise the question about the admissibility of Exh A-4 for want of registration: In the first place this contention cannot be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty is not set aside. The High Court had held after an examination of the evidence that it had not been proved that there was any change in the market condition in July or in December 1953 to call for a reduction in the rate of royalty or that there was any mutual arrangement or agreement between the lessor or the lessee for such a reduction which was to become effective from July 1952. No attempt was made by Mr. Sen to persuade us to reverse this conclusion. Even on the assumption that a mutual arrangement or agreement as evidenced by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh A-4 which had not been registered under the provisions of the Indian Registration Act. It is well settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered: See Durga Prasad Singh v, Rajendra Narain Bagchi, (1910) ILR 37 Cal 293 which was approved by the Full Bench in Lalit Mohan Ghosh v. Gopal Chuck Coal Company Ltd. (1912) ILR 39 Cal 284 (FB). The decision of the Madras High Court in Obai Goundan v. Ramalinga Ayyar, (1899) ILR 22 Mad 217,taking a contrary view has not been followed by the High Courts in India and the consistent view that has been taken is that registration of an agreement is necessary which reduces the rent of an existing registered lease. See Mulla on Indian Registration Act, 7th Edn. pages 75-76. 4. The other contentions faintly raised before us arising out of issue No. 3 and that Exh. A-4 had been acted upon do not survive in view of the conclusions arrived at by the High Court and the view that we have taken about the admissibility of the aforesaid document. The Civil Miscellaneous Petitions which were filed in this Court shall stand dismissed as, in our opinion, no ground has been made out for admitting additional evidence or for impleading the Oriental Coal Co. Ltd., as a party respondent here. | 0[ds]Even on the assumption that a mutual arrangement or agreement as evidenced by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh A-4 which had not been registered under the provisions of the Indian Registration Act. It is well settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered: See Durga Prasad Singh v, Rajendra Narain Bagchi, (1910) ILR 37 Cal 293 which was approved by the Full Bench in Lalit Mohan Ghosh v. Gopal Chuck Coal Company Ltd. (1912) ILR 39 Cal 284 (FB). The decision of the Madras High Court in Obai Goundan v. Ramalinga Ayyar, (1899) ILR 22 Mad 217,taking a contrary view has not been followed by the High Courts in India and the consistent view that has been taken is that registration of an agreement is necessary which reduces the rent of an existing registered lease. See Mulla on Indian Registration Act, 7th Edn. pages 75-764. The other contentions faintly raised before us arising out of issue No. 3 and that Exh. A-4 had been acted upon do not survive in view of the conclusions arrived at by the High Court and the view that we have taken about the admissibility of the aforesaid document. The Civil Miscellaneous Petitions which were filed in this Court shall stand dismissed as, in our opinion, no ground has been made out for admitting additional evidence or for impleading the Oriental Coal Co. Ltd., as a party respondent here. | 0 | 1,128 | 316 | ### 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:
Eastern Coal Co. Ltd., was granted a lease by the Zamindar of Jharia of certain land in mauza Gourkhanti in pargana Jharia. The Eastern Coal Co. erected buildings for manufacture of coke and also constructed office and the quarters for the staff and the labourers. On May 17, 1946 the Eastern Coal Co. sold the machineries on the demised land to the appellant and also granted a lease of the land on which the buildings stood to him. One of the terms of the lease was that royalty would be paid by the appellant at the rate of Re. 1/- per ton on dispatches of coke. The rate was subject to being revised from time to time by mutual arrangement between the parties "as may be justified by market condition". According to the appellant the Eastern Coal Company came to an arrangement in 1950 with him by which royalty on breeze coke was to be paid at the rate of 2 As. per ton. In December 1951 another arrangement was arrived at by which royalty on hard coke was to be paid at the reduced rate of 8 As. per ton instead of Re. 1 per ton stipulated in the lease dated May 17, 1946. This arrangement was to be given effect to from July 19, 1952. On January 5 1955 the Eastern Coal Company informed the appellant that the colliery had been sold to the Bhowra Kankanee Collieries Ltd. respondent No. 1, the sale being effective from January 1 1955. Respondent No. 1 claimed royalty on all despatches of coke including breeze coke at the rate of Re. 1 per ton. The appellant took up the position that by mutual agreement Eastern Coal Company had agreed to the royalty being payable on hard coke at the rate of 8 As. per ton and on breeze coke at 2 As. Per ton. The appellant paid to respondent No. 1 the amount calculated according to the above rates. 2. On January 31, 1956 respondent No. 1 instituted a suit against the appellant claiming a sum of Rs. 23,287-4-3 on account of royalty on all kinds of coke despatched during the period January 1955 to November 1955 at the rate of Re. 1 per ton. The Company further claimed damages at 6% per annum amounting to Rupees 1212-l1-9. The appellant contested the suit, his main plea being that by virtue of the arrangement arrived at with the Eastern Coal Company in accordance with the terms of the lease dated May 17, 1946 the royalty was payable at the rate of Re. 1 per ton for hard coke and 2 As. per ton for breeze coke. The trial Court accepted the plea of the appellant about reduction of the rates of royalty in terms of the arrangement arrived at with the Eastern Coal Company. It was further held that the document Exh A-4 in which this agreement or arrangement was incorporated did not require registration compulsorily and was admissible in evidence. The suit was dismissed. Respondent No. 1 preferred an appeal to the High Court. Although the Point with regard to the admissibility of Exh. A-4 for lack of registration was raised before the High Court it did not give any decision on it. The judgment of the High Court rested on the finding that the appellant had failed to prove that the reduction in the rate of royalty had been given effect to from July 1952. 3. Mr. B. Sen for the appellant sought to raise the question about the admissibility of Exh A-4 for want of registration: In the first place this contention cannot be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty is not set aside. The High Court had held after an examination of the evidence that it had not been proved that there was any change in the market condition in July or in December 1953 to call for a reduction in the rate of royalty or that there was any mutual arrangement or agreement between the lessor or the lessee for such a reduction which was to become effective from July 1952. No attempt was made by Mr. Sen to persuade us to reverse this conclusion. Even on the assumption that a mutual arrangement or agreement as evidenced by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh A-4 which had not been registered under the provisions of the Indian Registration Act. It is well settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered: See Durga Prasad Singh v, Rajendra Narain Bagchi, (1910) ILR 37 Cal 293 which was approved by the Full Bench in Lalit Mohan Ghosh v. Gopal Chuck Coal Company Ltd. (1912) ILR 39 Cal 284 (FB). The decision of the Madras High Court in Obai Goundan v. Ramalinga Ayyar, (1899) ILR 22 Mad 217,taking a contrary view has not been followed by the High Courts in India and the consistent view that has been taken is that registration of an agreement is necessary which reduces the rent of an existing registered lease. See Mulla on Indian Registration Act, 7th Edn. pages 75-76. 4. The other contentions faintly raised before us arising out of issue No. 3 and that Exh. A-4 had been acted upon do not survive in view of the conclusions arrived at by the High Court and the view that we have taken about the admissibility of the aforesaid document. The Civil Miscellaneous Petitions which were filed in this Court shall stand dismissed as, in our opinion, no ground has been made out for admitting additional evidence or for impleading the Oriental Coal Co. Ltd., as a party respondent here.
### Response:
0
### Explanation:
Even on the assumption that a mutual arrangement or agreement as evidenced by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh A-4 which had not been registered under the provisions of the Indian Registration Act. It is well settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered: See Durga Prasad Singh v, Rajendra Narain Bagchi, (1910) ILR 37 Cal 293 which was approved by the Full Bench in Lalit Mohan Ghosh v. Gopal Chuck Coal Company Ltd. (1912) ILR 39 Cal 284 (FB). The decision of the Madras High Court in Obai Goundan v. Ramalinga Ayyar, (1899) ILR 22 Mad 217,taking a contrary view has not been followed by the High Courts in India and the consistent view that has been taken is that registration of an agreement is necessary which reduces the rent of an existing registered lease. See Mulla on Indian Registration Act, 7th Edn. pages 75-764. The other contentions faintly raised before us arising out of issue No. 3 and that Exh. A-4 had been acted upon do not survive in view of the conclusions arrived at by the High Court and the view that we have taken about the admissibility of the aforesaid document. The Civil Miscellaneous Petitions which were filed in this Court shall stand dismissed as, in our opinion, no ground has been made out for admitting additional evidence or for impleading the Oriental Coal Co. Ltd., as a party respondent here.
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Ajmer Singh Vs. State Of Haryana | and Ors., [(1982) 2 SCC 101] . In that case it was held, that, in view of commutation of death sentence of one of the accused, who was similarly placed as that of appellant, award of death sentence to appellant was unjustified and, hence, the death sentence of the appellant was stayed till the decision of the President on commutation of sentence. An important observation of this Court on the point need to be noticed at this stage: "if will be a sheer travesty of justice and the course of justice will be perverted, if for the very same offence, the petitioner has to swing and pay the extreme penalty of death whereas the death sentence imposed on his co-accused for the very same offence is commuted to one of life imprisonment and the life of the co-accused is shared." 19) In the case of Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra, [(2003) 2 SCC 708] , this Court maintained that as the second accused was placed on the same situation as the appellant, Article 21 of the Constitution would not permit this court to deny the same benefit to the second accused. 20) The Court of Appeal Albert, Canada in R. v. Christie [2004 Carswell Alta 1224 Alberta Court of Appeal, 2004] discussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated: "40. Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the co-accused are sufficiently different to warrant significantly different sentences, such as where one co-accused has a lengthy related criminal record or played a much greater role in the commission of the offence." Thus, expressing its view on parity in sentencing the Court observed: "43. What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in cases involving joint ventures." Also the observation of the Court of Appeal Alberta in the case of Wahby v The Queen, [(2004) WASCA 308 2004 WL 3061388] whereby, the Court quoted the explanation given in the case of Goddard v The Queen, [(1999) 21 WAR 541], is relevant for the discussion in present case: "In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co-offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which maybe passed for the offence before the court." 21) The Court of Appeal of the Supreme Court of Victoria, Australia in the case of R v Hildebrandt [187 A Crim R 42 2008 WL 3856330; [2008] VSCA 142] observed: "Judicial expositions of the meaning of the parity principle are not entirely uniform. The term "the parity principle" is used in at least two senses in the relevant authorities. First, to express the recognition that like cases should be treated alike (itself an amanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the "appropriate comparability" of co-offenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition." 22) In the case Postiglione v The Queen [(1997) 189 CLR 295;94 A Crim R 397] Dawson and Gaudron JJ stated: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ...Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." The Court, therefore, concluded the principle to mean: "......it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation" 23) What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh was convicted vide a separate trial arising out of a separately registered F.I.R. Merely because the accused Randhir Singh happened to be searched on 24.1.1996 before the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he cannot be said to be a co-accused in the present case. Further, the sentence of accused Randhir Singh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No. 855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant. | 0[ds]23) What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh was convicted vide a separate trial arising out of a separately registered F.I.R. Merely because the accused Randhir Singh happened to be searched on 24.1.1996 before the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he cannot be said to be a co-accused in the present case. Further, the sentence of accused Randhir Singh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No. 855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant. | 0 | 5,060 | 198 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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and Ors., [(1982) 2 SCC 101] . In that case it was held, that, in view of commutation of death sentence of one of the accused, who was similarly placed as that of appellant, award of death sentence to appellant was unjustified and, hence, the death sentence of the appellant was stayed till the decision of the President on commutation of sentence. An important observation of this Court on the point need to be noticed at this stage: "if will be a sheer travesty of justice and the course of justice will be perverted, if for the very same offence, the petitioner has to swing and pay the extreme penalty of death whereas the death sentence imposed on his co-accused for the very same offence is commuted to one of life imprisonment and the life of the co-accused is shared." 19) In the case of Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra, [(2003) 2 SCC 708] , this Court maintained that as the second accused was placed on the same situation as the appellant, Article 21 of the Constitution would not permit this court to deny the same benefit to the second accused. 20) The Court of Appeal Albert, Canada in R. v. Christie [2004 Carswell Alta 1224 Alberta Court of Appeal, 2004] discussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated: "40. Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the co-accused are sufficiently different to warrant significantly different sentences, such as where one co-accused has a lengthy related criminal record or played a much greater role in the commission of the offence." Thus, expressing its view on parity in sentencing the Court observed: "43. What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in cases involving joint ventures." Also the observation of the Court of Appeal Alberta in the case of Wahby v The Queen, [(2004) WASCA 308 2004 WL 3061388] whereby, the Court quoted the explanation given in the case of Goddard v The Queen, [(1999) 21 WAR 541], is relevant for the discussion in present case: "In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co-offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which maybe passed for the offence before the court." 21) The Court of Appeal of the Supreme Court of Victoria, Australia in the case of R v Hildebrandt [187 A Crim R 42 2008 WL 3856330; [2008] VSCA 142] observed: "Judicial expositions of the meaning of the parity principle are not entirely uniform. The term "the parity principle" is used in at least two senses in the relevant authorities. First, to express the recognition that like cases should be treated alike (itself an amanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the "appropriate comparability" of co-offenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition." 22) In the case Postiglione v The Queen [(1997) 189 CLR 295;94 A Crim R 397] Dawson and Gaudron JJ stated: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ...Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." The Court, therefore, concluded the principle to mean: "......it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation" 23) What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh was convicted vide a separate trial arising out of a separately registered F.I.R. Merely because the accused Randhir Singh happened to be searched on 24.1.1996 before the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he cannot be said to be a co-accused in the present case. Further, the sentence of accused Randhir Singh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No. 855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant.
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0
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23) What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh was convicted vide a separate trial arising out of a separately registered F.I.R. Merely because the accused Randhir Singh happened to be searched on 24.1.1996 before the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he cannot be said to be a co-accused in the present case. Further, the sentence of accused Randhir Singh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No. 855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant.
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Hanumant Vs. The State Of Madhya Pradesh | follow that, in a bargain and sale such as this, the closing or even the destruction of the Mills would affect a contract between third parties, which is in terms absolute; but the Mills did continue to exist and did continue to manufacture the goods in question, only they were made for and delivered to somebody else. (6) We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent-firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words prepared by the Mill are only a description of the goods to be supplied, and the expressions as soon as they are prepared and as soon as they are supplied to us by the said Mill simply indicate the process of delivery. It should be remembered that what we have to construe is a commercial agreement entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, there is nothing surprising in a merchants binding himself to procure certain goods at all events, it being a matter of price and of market expectations. Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it. (7) Even apart from the construction of the agreement, it seems to us that the plea of the respondents must fail on their own admissions. The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of 20/11/1941 (Exhibit 1). On his own admission, therefore, he was in a position to supply 61 bales of the contracted goods at the time when the breach of the agreement is alleged to have happened. That being so, we are unable to hold that the performance of the contract had become impossible. The matter however does not rest there. Guruprasad, a clerk of the Mills Company, who is the second witness for the defendants, has made an important statement to the following effect: The customers all place their requirements before the sales Manager. If the goods required are ready, they are sold to the customers and if they are not ready and if the customer wants them to be manufactured they are delivered to the customers after manufacture. An order book in maintained at the Mills. Such being the practice which prevailed in the Victoria Mills, it was for the defendants to show that an order for the manufacture of the contracted goods was placed with the Mills and yet the Mills failed to supply the goods. No such evidence has however been offered by the defendants. The High Court has surmised that it might not have been possible to supply the goods within the period mentioned in the agreement, but there is no material to support that statement. (8) In these circumstances, this is obviously not a case in which the doctrine of frustration of contract can be invoked. That doctrine has been explained in a number of cases, some of which are referred to in the judgement of the High Court, but the latest pronouncement with regard to it is to be found in the speech of Viscount Simon in British Movietonews Ltd., v. London and District Cinemas Ltd., (1951) 2 ALL E. R. 617 in which the Lord Chancellor referred with approval to the following enunciation of the doctrine by East Loreburn in a previous case: . . . a Court can and ought to examine the contract and the circumstances in which it was made, not of course to vary, but only to explain it, in order to see whether or not from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. And if they, must have done so, then a term to that effect will be implied, though it be not expressed in the contract . : . . no Court has an absolving power, but it can infer from the nature of the contract and the surrounding circumstances that a condition which is not expressed was a foundation on which the parties contracted. (9) It seems necessary for us to emphasize that so far as the Courts in this country are concerned, they must look primarily to the law as embodied in Ss. 32 and 56. Indian Contract Act, 1872. These Sections run as follows: 32. Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. If the event becomes impossible such contracts become void. 56. An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawful. The enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of S. 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default. | 1[ds](6) We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent-firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words prepared by the Mill are only a description of the goods to be supplied, and the expressions as soon as they are prepared and as soon as they are supplied to us by the said Mill simply indicate the process of delivery. It should be remembered that what we have to construe is a commercial agreement entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, there is nothing surprising in a merchants binding himself to procure certain goods at all events, it being a matter of price and of market expectations. Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about itA contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfulThe enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of S. 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default. | 1 | 2,106 | 381 | ### 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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follow that, in a bargain and sale such as this, the closing or even the destruction of the Mills would affect a contract between third parties, which is in terms absolute; but the Mills did continue to exist and did continue to manufacture the goods in question, only they were made for and delivered to somebody else. (6) We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent-firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words prepared by the Mill are only a description of the goods to be supplied, and the expressions as soon as they are prepared and as soon as they are supplied to us by the said Mill simply indicate the process of delivery. It should be remembered that what we have to construe is a commercial agreement entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, there is nothing surprising in a merchants binding himself to procure certain goods at all events, it being a matter of price and of market expectations. Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it. (7) Even apart from the construction of the agreement, it seems to us that the plea of the respondents must fail on their own admissions. The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of 20/11/1941 (Exhibit 1). On his own admission, therefore, he was in a position to supply 61 bales of the contracted goods at the time when the breach of the agreement is alleged to have happened. That being so, we are unable to hold that the performance of the contract had become impossible. The matter however does not rest there. Guruprasad, a clerk of the Mills Company, who is the second witness for the defendants, has made an important statement to the following effect: The customers all place their requirements before the sales Manager. If the goods required are ready, they are sold to the customers and if they are not ready and if the customer wants them to be manufactured they are delivered to the customers after manufacture. An order book in maintained at the Mills. Such being the practice which prevailed in the Victoria Mills, it was for the defendants to show that an order for the manufacture of the contracted goods was placed with the Mills and yet the Mills failed to supply the goods. No such evidence has however been offered by the defendants. The High Court has surmised that it might not have been possible to supply the goods within the period mentioned in the agreement, but there is no material to support that statement. (8) In these circumstances, this is obviously not a case in which the doctrine of frustration of contract can be invoked. That doctrine has been explained in a number of cases, some of which are referred to in the judgement of the High Court, but the latest pronouncement with regard to it is to be found in the speech of Viscount Simon in British Movietonews Ltd., v. London and District Cinemas Ltd., (1951) 2 ALL E. R. 617 in which the Lord Chancellor referred with approval to the following enunciation of the doctrine by East Loreburn in a previous case: . . . a Court can and ought to examine the contract and the circumstances in which it was made, not of course to vary, but only to explain it, in order to see whether or not from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. And if they, must have done so, then a term to that effect will be implied, though it be not expressed in the contract . : . . no Court has an absolving power, but it can infer from the nature of the contract and the surrounding circumstances that a condition which is not expressed was a foundation on which the parties contracted. (9) It seems necessary for us to emphasize that so far as the Courts in this country are concerned, they must look primarily to the law as embodied in Ss. 32 and 56. Indian Contract Act, 1872. These Sections run as follows: 32. Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. If the event becomes impossible such contracts become void. 56. An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawful. The enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of S. 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default.
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### Explanation:
(6) We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent-firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words prepared by the Mill are only a description of the goods to be supplied, and the expressions as soon as they are prepared and as soon as they are supplied to us by the said Mill simply indicate the process of delivery. It should be remembered that what we have to construe is a commercial agreement entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, there is nothing surprising in a merchants binding himself to procure certain goods at all events, it being a matter of price and of market expectations. Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about itA contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfulThe enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of S. 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default.
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All India Bank Employees Vs. National Industrial Tribunal & Others (And Connected Petitions) | no criterion had been indicated as to the circumstances in which Banks could decide to make the claim. But this, however, is answered by the provision itself which runs :"When the banking company claims that such document, statement or information is of a confidential nature and that the production or inspection of such document . . .. .. . . .. . . would involve disclosure of information relating to the matters set out-the matter set out in sub-cls. (a) and (b)."It was also submitted that sub-cl. (b) of sub-sec. (1) was vague, in that a reference was made to "provision made for bad and doubtful debts and other usual or necessary provisions". We do not see any substance in this point either, because these words are taken from the form under the Banking Companies Act and their meaning is clear in banking circles. In fact, in the application which the employee associations made before the adjudicator to direct the production of information and documents from the banks this phrase was used and it is apparent that even the Bank Employees Associations understood it as having a definite connotation.36. It was next submitted on behalf of some of the interveners that S. 34A(1) and (2) violated Art. 14 in that the classification contained in it was impermissible as not being based on rational grounds. It was said (1) that the protection against a disclosure applied only to adjudications under the Industrial Disputes Act and not to other adjudications; (2) that it applied only to certain banking companies and not to all banking companies; and (3) that by reason of S. 34A(2) the provisions of the impugned enactment were applied in a discriminatory manner to all banks other than the Reserve Bank. The first two points cover the same ground and arise out of the fact that the impugned provision by its 3rd sub-section defines a "banking company" referred to in it and to which its provisions apply, as meaning a "Banking Company" under the Industrial Disputes Act, 1947. The Industrial Disputes Act defines a "Banking Company" in S. 2(b)(b) as follows :"Banking Company means a banking company as defined in S. 5 of the Banking Companies Act. 1949, having branches or other establishments in more than one State and includes the State Bank of India and the Reserve Bank of India."It would thus be seen that though the Banking Companies Act applied to every banking company, it is only those banks whose operations extended beyond one State that were brought within the scope of the definition of a "banking company" under the Industrial Disputes Act. The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the Industrial Disputes Act but not "a banking company" within its definition. In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the Industrial Disputes Act would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision. This, however, is no ground for holding the legislation invalid. In the first place, the complaint of discrimination is not by the banks who are not on the terms of S. 34A entitled to the protection from disclosure of their reserves, etc. Secondly it is common ground that 95 per cent. of the banking business in this country is in the hands of Banks which are within the definition of "banking companies" under S. 2(b) (b) of the Industrial Disputes Act. Besides, these banks employ over 80,000 out of the 90,000 bank-employees. In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc. of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation. The fact that the legislation does not cover every Banking Company is therefore no ground for holding the provision to be discriminatory within Art. 14.37. The last point about the exclusion of the Reserve Bank of India from the operation of S. 34A(2) has also no substance. In the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub-s. (3) of the impugned provision. In determining what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi-judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that there is no impropriety in its findings being final even in regard to itself. A submission on similar lines about bias was also made in relation to the impact of the impugned provision in so far as it related to the industrial disputes between the State Bank of India and its employees. It was pointed out to us that the Reserve Bank of India owned practically the entirety of the share-capital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitially interested in supporting the State Bank as against the latters employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision. We consider this argument without force. If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by Part III of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank.38. As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration. | 0[ds]We are clearly of the opinion that this has to be answered in the negative. An affirmative answer would be contradictory of the scheme underlying the text and the frame of the several fundamental rights which are guaranteed by Part III and particularly by the scheme of the seven freedoms or groups of freedoms guaranteed by sub-cls. (a) to (g) of Cl. (1) of Art. 19.The acceptance of any such argument would mean that while in the case of an individual citizen to whom a right to carry on a trade or business or pursue an occupation is guaranteed . by sub-cl. (g) of Cl. (1) of Art. 19, the validity of a law which imposes any restriction on this guaranteed right would have to be tested by the criteria laid down by Cl. (6) of Art. 19, if however he associated with another and carried on the same activity-say as a partnership, or as a company etc., he obtains larger rights of a different content and with different characteristics which include the right to have the validity of legislation restricting his activities tested by different standards, viz., those laid down in Cl. (4) of Art. 19. This would itself be sufficient to demonstrate that the construction which the learned Counsel for the appellant contends is incorrect, but this position is rendered clearer by the fact that Art. 19-as contrasted with certain other Articles like Arts. 26, 29 and 30-grants rights to the citizen as such, and associations can lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an aggregation of citizens, i.e., in right of the citizens composing the body. As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens composing it are subject.19. The resulting position may be illustrated thus : If an association were formed for the purpose of carrying on business, the right to form it would be guaranteed by sub-cl. (c) of Cl. (1) of Art. 19 subject to any law restricting that right conforming to Cl. (4) of Art. 19. As regards its business activities, however, and the achievement of the objects for which it was brought into existence, its right would be those guaranteed by sub-cl. (g) of Cl. (1) of Art. 19 subject to any relevant law on the matter conforming to Cl. (6) of Art. 19; while the property which the association acquires or possesses would be protected by sub-cl. (f) of Cl. (1) of Art. 19 subject to legislation within the limits laid down by Cl. (5) of Art. 19.There is no doubt that in the context of the principles underlying the Constitution and the manner in which its Part III has been framed the guarantees embodied in it are to be interpreted in a liberal way so as to subserve the purpose for which the constitution-makers intended them and not in any pedantic or narrow sense, but this however does not imply that the Court is at liberty to give an unnatural and artificial meaning to the expressions used based on ideological considerations. Besides it may be pointed out that both under the Trade Unions Act as well as under the Industrial Disputes Act the expression union signifies not merely a union of workers but includes also unions of employers. If the fulfilment of every object for which a union of workmen was formed were held to be a guaranteed right, it would logically follow that a similar content ought to be given to the same freedom when applied to a union of employers which would result in an absurdity. We are pointing this out not as any conclusive "answer, but to indicate that the theory of learned Counsel that a right to form unions guaranteed by sub-cl. (c) of Cl. (1) of Art. 19 carries with it a fundamental right in the union so formed to achieve every object for which it was formed with the legal consequence that any legislation not falling within Cl. (4) of Art. 19 which might in any way hamper the fulfilment of those objects, should be declared un-constitutional and void under Art. 13 of the Constitution; is not a proposition which could be accepted aswould be seen that if the right to strike were by implication a right guaranteed by sub-cl. (c) of cl. (1) of Art. 19 then the restriction on that right in the interests of the general public, viz., of national economy while perfectly legitimate it tested by the creteria in cl. (6) of Art. 19, might not be capable of being sustained as a reasonable restriction imposed for reasons of morality or public order. On the construction of the Article, therefore, apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of sub-cl. (c) of cl. (1) of Art. 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise. The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid down in cl. (4) of Art. 19 but by totally differentis obvious that freedom of speech" means freedom to speak so as to be heard by others, and therefore to convey ones ideas to others. Similarly the very idea of freedom of expression necessarily connotes that what one has a right to express may be communicated to others. Unless therefore the freedom guaranteed by sub-cl. (a) of cl. (1) of Art. 19 were read as confined to the right to speak to oneself or to express his ideas to himself, which obviously they could not mean, the guaranteed freedom would mean freedom to address others, and of conveying to others ones ideas by printed word, viz., freedom of circulation. We do not see, therefore, any analogy between the case which was considered by this Court in Romesh Thappars 1950 SCR 594 : (AIR 1950 SC 124 ), case and the one beforethe two decisions referred to the learned Judges of the Supreme Court of the United States were not construing the content of a provision on the lines of Art. 19(1) (c), for in America, the right of association is not any specifically guaranteed right, but has been derived by judicial interpretation of the due process clause of the 14th Amendment. But apart from this the legislation there impugned was one which directly affected the formation of the association and in that sense may be hit by the terms of sub-cl. (c) of Cl. (1) of Art. 19 if statutes with similar purpose were enacted in India. The decisions cited are no authority for the second step in the argument for which they werehave, therefore, reached the conclusion that the right guaranteed by sub-cl. (c) of Cl. (1) of Art. 19 does not carry with it a concomitant right that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence, such that any interference to such achievement by the law of the land would be unconstitutional unless the same could be justified as in the interests of public order or morality. In our opinion, the right guaranteed under sub-cl. (c) of Cl. (1) of Art. 19 extends to the formation of an association and in so far as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in Cl. [(4) of Art. 19 of thedispute between the parties in relation either to wages, bonus or other amenities or perquisites which involve financial obligations on the part of the employer remain even after the impugned provision was enacted, with the adjudicator and he alone determines the rights of the parties subject to the provisions of the Industrial law or other relevant legislation, and the relief which he could award to the employees remains the same. The adjudicator alone determines the capacity of the industry to pay or to bear the enhanced cost. The only result of S. 34-A is that in regard to two items, viz., secret reserves and the provision made by banks "for bad and doubtful debts and other necessary provisions", the reasonable quantum which would be available for being taken into account by the adjudicator would be estimated and determined by an expert body which is a governmental authority or practically a department of Government, viz., the Reserve Bank of India which is entrusted by law with duty of maintaining the credit structure of thequestion was how far information which in the interests of national economy the banks were entitled to withhold from their shareholders and the general public, was to be made available for determining the capacity of the banks to pay their employees. It was in these circumstances that the impugned legislation was enacted which while preserving industrial adjudication in respect of disputes between the banks and their employees, entrusted the duty of determining the surplus reserve which could be taken into account as part of the assets for determining capacity to pay, to the Reserve Bank. Thus understood there does not appear to be anything unreasonable in the solution which the impugned legislation haswe have pointed out already, the impugned legislation merely carries out to its logical conclusion the effect of the changes in the form of the balance-sheet and Profit and Loss accounts of Banks which starting in 1927 culminated in the notification dated December 22, 1951 under S. 29(4) of the Banking Companies Act amending the Forms appended to that Act. If the construction of the "right to form unions under sub-cl. (c) of Cl. (1) of Art. 19 put forward by learned Counsel for impugning the validity of the enactment is negatived, then subject to the point about Art. 14 which we shall examine presently, legislative, competence being conceded there could be no legal objection to its validity. Objections based on colourable legislation have relevance only in situations when the power of the legislature is restricted to particular topics, and an attempt is made to escape legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the real subject-matter. No such problem exists in the present case and it is common ground that once the legislation passes the test of the fundamental rights guaranteed by Part III, legisative competence not being in dispute, its validity is beyond cavil. The question whether the secrecy assured by S. 21 of the Industrial Disputes Act is or is not sufficient to protect the interests of the Banks, is a matter of legislative policy-and is for Parliament alone-and even the fact that the Court could be persuaded that the existing law is sufficient would be no ground for invalidating the impugned legislation. When the end which the legislature seeks to achieve, viz., secrecy is competent, the enquiry as to ultra vires stops. Whether less than what was done might have been enough, whether more drastic provision was made than occasion demanded, whether the same purposes could have been achieved by provisions differently framed or by other means, these are wholly irrelevant considerations for testing the validity of the law.They do not touch or concern the ambit of the power but only the manner of its exercise, and once the provisions of Part III of the Constitution are out of the way, the validity of the legislation is not open towould thus be seen that though the Banking Companies Act applied to every banking company, it is only those banks whose operations extended beyond one State that were brought within the scope of the definition of a "banking company" under the Industrial Disputes Act. The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the Industrial Disputes Act but not "a banking company" within its definition. In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the Industrial Disputes Act would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision. This, however, is no ground for holding the legislation invalid. In the first place, the complaint of discrimination is not by the banks who are not on the terms of S. 34A entitled to the protection from disclosure of their reserves, etc. Secondly it is common ground that 95 per cent. of the banking business in this country is in the hands of Banks which are within the definition of "banking companies" under S. 2(b) (b) of the Industrial Disputes Act. Besides, these banks employ over 80,000 out of the 90,000 bank-employees. In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc. of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation. The fact that the legislation does not cover every Banking Company is therefore no ground for holding the provision to be discriminatory within Art. 14.37. The last point about the exclusion of the Reserve Bank of India from the operation of S. 34A(2) has also no substance. In the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub-s. (3) of the impugned provision. In determining what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi-judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that there is no impropriety in its findings being final even in regard to itself. A submission on similar lines about bias was also made in relation to the impact of the impugned provision in so far as it related to the industrial disputes between the State Bank of India and its employees. It was pointed out to us that the Reserve Bank of India owned practically the entirety of the share-capital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitially interested in supporting the State Bank as against the latters employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision. We consider this argument without force. If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by Part III of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank.38. As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration. | 0 | 11,917 | 2,914 | ### 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:
no criterion had been indicated as to the circumstances in which Banks could decide to make the claim. But this, however, is answered by the provision itself which runs :"When the banking company claims that such document, statement or information is of a confidential nature and that the production or inspection of such document . . .. .. . . .. . . would involve disclosure of information relating to the matters set out-the matter set out in sub-cls. (a) and (b)."It was also submitted that sub-cl. (b) of sub-sec. (1) was vague, in that a reference was made to "provision made for bad and doubtful debts and other usual or necessary provisions". We do not see any substance in this point either, because these words are taken from the form under the Banking Companies Act and their meaning is clear in banking circles. In fact, in the application which the employee associations made before the adjudicator to direct the production of information and documents from the banks this phrase was used and it is apparent that even the Bank Employees Associations understood it as having a definite connotation.36. It was next submitted on behalf of some of the interveners that S. 34A(1) and (2) violated Art. 14 in that the classification contained in it was impermissible as not being based on rational grounds. It was said (1) that the protection against a disclosure applied only to adjudications under the Industrial Disputes Act and not to other adjudications; (2) that it applied only to certain banking companies and not to all banking companies; and (3) that by reason of S. 34A(2) the provisions of the impugned enactment were applied in a discriminatory manner to all banks other than the Reserve Bank. The first two points cover the same ground and arise out of the fact that the impugned provision by its 3rd sub-section defines a "banking company" referred to in it and to which its provisions apply, as meaning a "Banking Company" under the Industrial Disputes Act, 1947. The Industrial Disputes Act defines a "Banking Company" in S. 2(b)(b) as follows :"Banking Company means a banking company as defined in S. 5 of the Banking Companies Act. 1949, having branches or other establishments in more than one State and includes the State Bank of India and the Reserve Bank of India."It would thus be seen that though the Banking Companies Act applied to every banking company, it is only those banks whose operations extended beyond one State that were brought within the scope of the definition of a "banking company" under the Industrial Disputes Act. The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the Industrial Disputes Act but not "a banking company" within its definition. In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the Industrial Disputes Act would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision. This, however, is no ground for holding the legislation invalid. In the first place, the complaint of discrimination is not by the banks who are not on the terms of S. 34A entitled to the protection from disclosure of their reserves, etc. Secondly it is common ground that 95 per cent. of the banking business in this country is in the hands of Banks which are within the definition of "banking companies" under S. 2(b) (b) of the Industrial Disputes Act. Besides, these banks employ over 80,000 out of the 90,000 bank-employees. In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc. of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation. The fact that the legislation does not cover every Banking Company is therefore no ground for holding the provision to be discriminatory within Art. 14.37. The last point about the exclusion of the Reserve Bank of India from the operation of S. 34A(2) has also no substance. In the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub-s. (3) of the impugned provision. In determining what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi-judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that there is no impropriety in its findings being final even in regard to itself. A submission on similar lines about bias was also made in relation to the impact of the impugned provision in so far as it related to the industrial disputes between the State Bank of India and its employees. It was pointed out to us that the Reserve Bank of India owned practically the entirety of the share-capital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitially interested in supporting the State Bank as against the latters employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision. We consider this argument without force. If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by Part III of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank.38. As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration.
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to the Reserve Bank. Thus understood there does not appear to be anything unreasonable in the solution which the impugned legislation haswe have pointed out already, the impugned legislation merely carries out to its logical conclusion the effect of the changes in the form of the balance-sheet and Profit and Loss accounts of Banks which starting in 1927 culminated in the notification dated December 22, 1951 under S. 29(4) of the Banking Companies Act amending the Forms appended to that Act. If the construction of the "right to form unions under sub-cl. (c) of Cl. (1) of Art. 19 put forward by learned Counsel for impugning the validity of the enactment is negatived, then subject to the point about Art. 14 which we shall examine presently, legislative, competence being conceded there could be no legal objection to its validity. Objections based on colourable legislation have relevance only in situations when the power of the legislature is restricted to particular topics, and an attempt is made to escape legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the real subject-matter. No such problem exists in the present case and it is common ground that once the legislation passes the test of the fundamental rights guaranteed by Part III, legisative competence not being in dispute, its validity is beyond cavil. The question whether the secrecy assured by S. 21 of the Industrial Disputes Act is or is not sufficient to protect the interests of the Banks, is a matter of legislative policy-and is for Parliament alone-and even the fact that the Court could be persuaded that the existing law is sufficient would be no ground for invalidating the impugned legislation. When the end which the legislature seeks to achieve, viz., secrecy is competent, the enquiry as to ultra vires stops. Whether less than what was done might have been enough, whether more drastic provision was made than occasion demanded, whether the same purposes could have been achieved by provisions differently framed or by other means, these are wholly irrelevant considerations for testing the validity of the law.They do not touch or concern the ambit of the power but only the manner of its exercise, and once the provisions of Part III of the Constitution are out of the way, the validity of the legislation is not open towould thus be seen that though the Banking Companies Act applied to every banking company, it is only those banks whose operations extended beyond one State that were brought within the scope of the definition of a "banking company" under the Industrial Disputes Act. The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the Industrial Disputes Act but not "a banking company" within its definition. In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the Industrial Disputes Act would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision. This, however, is no ground for holding the legislation invalid. In the first place, the complaint of discrimination is not by the banks who are not on the terms of S. 34A entitled to the protection from disclosure of their reserves, etc. Secondly it is common ground that 95 per cent. of the banking business in this country is in the hands of Banks which are within the definition of "banking companies" under S. 2(b) (b) of the Industrial Disputes Act. Besides, these banks employ over 80,000 out of the 90,000 bank-employees. In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc. of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation. The fact that the legislation does not cover every Banking Company is therefore no ground for holding the provision to be discriminatory within Art. 14.37. The last point about the exclusion of the Reserve Bank of India from the operation of S. 34A(2) has also no substance. In the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub-s. (3) of the impugned provision. In determining what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi-judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that there is no impropriety in its findings being final even in regard to itself. A submission on similar lines about bias was also made in relation to the impact of the impugned provision in so far as it related to the industrial disputes between the State Bank of India and its employees. It was pointed out to us that the Reserve Bank of India owned practically the entirety of the share-capital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitially interested in supporting the State Bank as against the latters employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision. We consider this argument without force. If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by Part III of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank.38. As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration.
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Nagashetty Vs. United Indis Insurance Co. Ltd. | Mr. S.C. Sharda, appearing for the respondent Insurance Company drew attention of this court to the definitions of the terms "goods carriage", "tractor", "trailer" and "transport vehicle" in Sections 2(14), 2(44), 2(46) and 2(47) respectively of the Motor Vehicles Act, 1988. These read as follows :- "2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; 2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller; 2(46) "trailer" means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle; 2(47) "transport vehicle" mean a public service vehicle, a good carriage, an educational institution bus or a private service vehicle." 9. Relying on these definitions Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle. He submitted that therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that thus the driver did not have a valid driving licence to drive the type of vehicle he was driving. He submitted that as the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Company could not be made liable. He submitted that the High Court was right in so holding. 10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10 a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.11. In this case we find that the Insurance Company, when issuing the Insurance Policy, had also so understood. The Insurance Policy has been issued for a tractor. In this Insurance Policy an additional premium of Rs. 12/- has been taken for a trailer. Therefore, the Insurance Policy covers not just the tractor but also a trailer attached to the tractor. The Insurance Policy provides as follows for the "persons or classes of persons entitled to drive"."Persons or classes of persons entitled to drive. -Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence :Provided also that the person holding an effective learners licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for trailer. The restriction placed on a person holding a learners licence i.e. not to drive when goods are being carried is not there for a permanent licence holder. Thus a permanent licence holder having a effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it. 13. In our view, for the above reasons, the judgment of the High Court cannot be sustained and is hereby set aside. The judgment of MACT, holding the Insurance Company liable is restored. As the appellants have already made payment to the legal representatives of the deceased (Chand Pasha) they will now be entitled to be reimbursed by the respondent-Company. 14. The appeals stand disposed of accordingly. There shall be no order as to costs. | 1[ds]10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10 a licence is granted to drive specific categories of motor vehicles.The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective.If the argument of Mr. S.C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.11. In this case we find that the Insurance Company, when issuing the Insurance Policy, had also so understood. The Insurance Policy has been issued for a tractor. In this Insurance Policy an additional premium of Rs. 12/- has been taken for a trailer. Therefore, the Insurance Policy covers not just the tractor but also a trailer attached to the tractor. The Insurance Policy provides as follows for the "persons or classes of persons entitled to drive"."Persons or classes of persons entitled to drive. -Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence :Provided also that the person holding an effective learners licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for trailer. The restriction placed on a person holding a learners licence i.e. not to drive when goods are being carried is not there for a permanent licence holder. Thus a permanent licence holder having a effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it. | 1 | 1,653 | 645 | ### 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:
Mr. S.C. Sharda, appearing for the respondent Insurance Company drew attention of this court to the definitions of the terms "goods carriage", "tractor", "trailer" and "transport vehicle" in Sections 2(14), 2(44), 2(46) and 2(47) respectively of the Motor Vehicles Act, 1988. These read as follows :- "2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; 2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller; 2(46) "trailer" means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle; 2(47) "transport vehicle" mean a public service vehicle, a good carriage, an educational institution bus or a private service vehicle." 9. Relying on these definitions Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle. He submitted that therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that thus the driver did not have a valid driving licence to drive the type of vehicle he was driving. He submitted that as the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Company could not be made liable. He submitted that the High Court was right in so holding. 10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10 a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.11. In this case we find that the Insurance Company, when issuing the Insurance Policy, had also so understood. The Insurance Policy has been issued for a tractor. In this Insurance Policy an additional premium of Rs. 12/- has been taken for a trailer. Therefore, the Insurance Policy covers not just the tractor but also a trailer attached to the tractor. The Insurance Policy provides as follows for the "persons or classes of persons entitled to drive"."Persons or classes of persons entitled to drive. -Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence :Provided also that the person holding an effective learners licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for trailer. The restriction placed on a person holding a learners licence i.e. not to drive when goods are being carried is not there for a permanent licence holder. Thus a permanent licence holder having a effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it. 13. In our view, for the above reasons, the judgment of the High Court cannot be sustained and is hereby set aside. The judgment of MACT, holding the Insurance Company liable is restored. As the appellants have already made payment to the legal representatives of the deceased (Chand Pasha) they will now be entitled to be reimbursed by the respondent-Company. 14. The appeals stand disposed of accordingly. There shall be no order as to costs.
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1
### Explanation:
10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10 a licence is granted to drive specific categories of motor vehicles.The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective.If the argument of Mr. S.C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.11. In this case we find that the Insurance Company, when issuing the Insurance Policy, had also so understood. The Insurance Policy has been issued for a tractor. In this Insurance Policy an additional premium of Rs. 12/- has been taken for a trailer. Therefore, the Insurance Policy covers not just the tractor but also a trailer attached to the tractor. The Insurance Policy provides as follows for the "persons or classes of persons entitled to drive"."Persons or classes of persons entitled to drive. -Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence :Provided also that the person holding an effective learners licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for trailer. The restriction placed on a person holding a learners licence i.e. not to drive when goods are being carried is not there for a permanent licence holder. Thus a permanent licence holder having a effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it.
|
Lekh Raj Khurana, Vs. Union Of India | D/- 8-3-1968 (SC) ) Both these decisions fully cover the case of the appellant so far as the applicability of Art. 311 is concerned. 5. Learned counsel for the appellant sought to argue that since the appellant was admittedly governed by the rules which were trained under S. 241 (2) of the Government of India Act 1935 he was entitled to the protection of S. 240 of that Act. Chapter I of Part 10 of that Act related to the Defence Services. According to S. 238, Ss. 235, 236 and 237 were applicable to persons who not being members of His Majestys Forces held or had held posts in India connected with the equipment or administration of those forces or otherwise connected with Defence as they applied in relation to persons who were or had been members of those forces. Section 240, to the extent it is material, was in the following terms:"240 (1) Except as expressly provided by this Act, every person who ts a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majestys pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity or showing cause against the action proposed to be taken in regard to him. Provided. . . . . . . . " Section 241 provided for recruitment and conditions of service. 6. On behalf of the appellant it was contended that since his conditions of service were governed by the rules which were framed under the above section, S. 240 was dearly applicable and his services could not have been terminated in terms of sub-sec. (2) of that section by any authority subordinate to that by which he was appointed nor could he be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. At no stage of the proceedings in the courts below the appellant relied on S. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force. It was apparently for that reason that protection was sought from Art. 311 and not S. 240 of the Government of India Act 1935.We see no reason or justification in the present case for determining whether a person holding a civilian post which is connected with the defence and for which he is paid salary and emoluments from the Defence Estimates would be governed by the provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servant. 7. The next question is whether rule 5 of the Rules was applicable and whether the appellant could claim the benefit of that rule. It provided, inter alia, that the service of a temporary government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant. The view of the High Court that the rules were not justiciable cannot be sustained as the decision of the Privy Council in Venkataraos case, AIR 1937 PC 31 and the other cases following that view have not been accepted as laying down the law correctly by this court. It has been held that the breach of a statutory rule in relation to the conditions of service would entitle the aggrieved government servant to have recourse to the court for redress; vide State of Uttar Pradesh v. Ajodhta Prasad, (1961) 2 SCR 679 = (AIR 1961 SC 751 ) and State of Mysore v. M. H. Bellary, (1964) 7 SCR 471 = (AIR 1965 SC 868 ). 8. Now Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the one months notice of discharge was given by the ordnance Officer, Administration, under instructions received from the Army Headquarters. A copy of another letter Exht. P-2 dated May 27, 1951 was produced according to which it had been decided by the Government of India that the services of the appellant be terminated by giving him one months notice. It is true that the original of that letter was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by the appointing authority. At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage. The learned counsel for the appellant attempted to reopen the finding on the question of mala fides and also invoked the rule of natural justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or termination of services. In the appeal before this court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to reagitate that matter. As regards the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. 9. | 0[ds]At no stage of the proceedings in the courts below the appellant relied on S. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force. It was apparently for that reason that protection was sought from Art. 311 and not S. 240 of the Government of India Act 1935.We see no reason or justification in the present case for determining whether a person holding a civilian post which is connected with the defence and for which he is paid salary and emoluments from the Defence Estimates would be governed by the provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servantNow Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the one months notice of discharge was given by the ordnance Officer, Administration, under instructions received from the Army Headquarters. A copy of another letter Exht. P-2 dated May 27, 1951 was produced according to which it had been decided by the Government of India that the services of the appellant be terminated by giving him one months notice. It is true that the original of that letter was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by the appointing authority. At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage. The learned counsel for the appellant attempted to reopen the finding on the question of mala fides and also invoked the rule of natural justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or termination of services. In the appeal before this court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to reagitate that matter. As regards the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. | 0 | 2,119 | 471 | ### 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:
D/- 8-3-1968 (SC) ) Both these decisions fully cover the case of the appellant so far as the applicability of Art. 311 is concerned. 5. Learned counsel for the appellant sought to argue that since the appellant was admittedly governed by the rules which were trained under S. 241 (2) of the Government of India Act 1935 he was entitled to the protection of S. 240 of that Act. Chapter I of Part 10 of that Act related to the Defence Services. According to S. 238, Ss. 235, 236 and 237 were applicable to persons who not being members of His Majestys Forces held or had held posts in India connected with the equipment or administration of those forces or otherwise connected with Defence as they applied in relation to persons who were or had been members of those forces. Section 240, to the extent it is material, was in the following terms:"240 (1) Except as expressly provided by this Act, every person who ts a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majestys pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity or showing cause against the action proposed to be taken in regard to him. Provided. . . . . . . . " Section 241 provided for recruitment and conditions of service. 6. On behalf of the appellant it was contended that since his conditions of service were governed by the rules which were framed under the above section, S. 240 was dearly applicable and his services could not have been terminated in terms of sub-sec. (2) of that section by any authority subordinate to that by which he was appointed nor could he be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. At no stage of the proceedings in the courts below the appellant relied on S. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force. It was apparently for that reason that protection was sought from Art. 311 and not S. 240 of the Government of India Act 1935.We see no reason or justification in the present case for determining whether a person holding a civilian post which is connected with the defence and for which he is paid salary and emoluments from the Defence Estimates would be governed by the provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servant. 7. The next question is whether rule 5 of the Rules was applicable and whether the appellant could claim the benefit of that rule. It provided, inter alia, that the service of a temporary government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant. The view of the High Court that the rules were not justiciable cannot be sustained as the decision of the Privy Council in Venkataraos case, AIR 1937 PC 31 and the other cases following that view have not been accepted as laying down the law correctly by this court. It has been held that the breach of a statutory rule in relation to the conditions of service would entitle the aggrieved government servant to have recourse to the court for redress; vide State of Uttar Pradesh v. Ajodhta Prasad, (1961) 2 SCR 679 = (AIR 1961 SC 751 ) and State of Mysore v. M. H. Bellary, (1964) 7 SCR 471 = (AIR 1965 SC 868 ). 8. Now Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the one months notice of discharge was given by the ordnance Officer, Administration, under instructions received from the Army Headquarters. A copy of another letter Exht. P-2 dated May 27, 1951 was produced according to which it had been decided by the Government of India that the services of the appellant be terminated by giving him one months notice. It is true that the original of that letter was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by the appointing authority. At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage. The learned counsel for the appellant attempted to reopen the finding on the question of mala fides and also invoked the rule of natural justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or termination of services. In the appeal before this court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to reagitate that matter. As regards the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. 9.
### Response:
0
### Explanation:
At no stage of the proceedings in the courts below the appellant relied on S. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force. It was apparently for that reason that protection was sought from Art. 311 and not S. 240 of the Government of India Act 1935.We see no reason or justification in the present case for determining whether a person holding a civilian post which is connected with the defence and for which he is paid salary and emoluments from the Defence Estimates would be governed by the provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servantNow Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the one months notice of discharge was given by the ordnance Officer, Administration, under instructions received from the Army Headquarters. A copy of another letter Exht. P-2 dated May 27, 1951 was produced according to which it had been decided by the Government of India that the services of the appellant be terminated by giving him one months notice. It is true that the original of that letter was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by the appointing authority. At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage. The learned counsel for the appellant attempted to reopen the finding on the question of mala fides and also invoked the rule of natural justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or termination of services. In the appeal before this court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to reagitate that matter. As regards the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked.
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Jadab Singh And Others Vs. The Himachal Pradesh Administrationand Another | New Himachal State Assembly to enact the Abolition Act in 1954 cannot be and is not denied. There is no absolute bar against the authority of the Parliament to enact legislation which takes away vested rights provided the legislation falls within any of the legislative lists within the competence of the Parliament and it does not infringe any of the fundamental rights of the citizens. Again, no constitutional provision is violated by the enactment of Act 56 of 1958. We are also unable to hold that the authority of Parliament to validate the acts and proceedings of the assembly summoned by the Lieutenant-Governor in 1954 was exhausted when Art. 240 as it originally stood was amended by the Constitution (7th Amendment) Act, 1956 and Part C State of Himachal Pradesh ceased to exist.When the Validating Act was enacted, the Himachal Pradesh State had ceased to exist and by the operation of the States Reorganisation Act, 1956, that State had merged in the State of Punjab, but on that account, the authority of the Parliament to validate the proceedings of the body of persons which purported to function as the Legislative Assembly under Act 32 of 1954 was not extinguished.10. Did the Abolition Act infringe the fundamental rights of the petitioners under Art. 19 or Art. 31 of the Constitution? By S. 11, the tenants were invested with the right to acquire the interests of the landowners in the lands held by them. It was provided that notwithstanding any law, custom or contract to the contrary, any tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of the Act, be entitled to acquire, on payment of compensation, the right, title and interest of the land-owner in the land held by him subject to certain terms and conditions set out therein. Section 14 permitted acquisition by the tenants of the rights of the landowners in a portion of the lands of the tenancy in certain specified circumstances. Section 15 sanctioned the acquisition by the State Government of the rights of the landowners by notification in the gazette declaring that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the land-owner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the land-owner. By S. 16, the method of computation of the compensation payable for acquisition of the right, title and interest of the land-owners under S. 15 is prescribed. By S. 27, it was provided that notwithstanding anything contained in the provisions of the foregoing sections of that chapter, the land-owner who held land, the annual land revenue of which exceeded Rs. 125/- per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free of all encumbrances. Sub-sec. (3) of S. 27 laid down that the land-owner whose right was acquired under sub-sec. (1) by the State Government shall be entitled to receive compensation to be determined by the compensation officer having regard to Ss. 17 and 18 of the Act, in accordance with the provisions of Schedule II; but in the case of such occupancy tenant who was liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his land-owner shall be computed in accordance with Schedule I. Provision was also made by the Act for State management of lands in certain eventualities. Article 31 of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1955 provides inter alia that a law for compulsory acquisition of property for public purposes shall not be called in question in any Court on the ground that the compensation provided by that law is not adequate, and by Art. 31A which was substituted by the Constitution (Fourth Amendment) Act, 1955 for the original Article with retrospective effect, it is provided that notwithstanding anything contained in Art. 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights.... Shall be deemed to have become void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Art. 14, 19 or 31; provided that where such law is made by the legislature of a State, the provisions of the Article shall not apply thereto unless, the law, having been reserved for the consideration of the President, has received his assent. The Abolition Act passed by the State Assembly was reserved for consideration of the President and it received his assent. The impugned Act contains provisions transferring the interest of the land-owners to the tenants in lands and for acquisition by the State of the property of the land-owners on payment to compensation under the Schedule provided in that behalf. This Court has held in Sri Ram Ram Narain v. State of Bombay, AIR 1959 SC 459 , that a statute the object of which is to bring about agrarian reform by transferring the interest of the land-owners to tenants falls within the class of statutes contemplated by Art. 31A (a) and is protected from the attack that it violates the fundamental rights enshrined in Arts. 14, 19 and 31 of the Constitution. Counsel appearing on behalf of the petitioners conceded and in our judgment rightly, that the principle of that case governed this case and the validity of S. 11 could not in view of Art. 31A be challenged. The validity of the provisions for acquisition by the State of the lands of the land-owners for compensation determinable in accordance with the provisions of Sch. II is also not liable to be challenged under Art. 31 read with Art. 31A. | 0[ds]By S. 11, the tenants were invested with the right to acquire the interests of the landowners in the lands held by them. It was provided that notwithstanding any law, custom or contract to the contrary, any tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of the Act, be entitled to acquire, on payment of compensation, the right, title and interest of the land-owner in the land held by him subject to certain terms and conditions set out therein. Section 14 permitted acquisition by the tenants of the rights of the landowners in a portion of the lands of the tenancy in certain specified circumstances. Section 15 sanctioned the acquisition by the State Government of the rights of the landowners by notification in the gazette declaring that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the land-owner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the land-owner. By S. 16, the method of computation of the compensation payable for acquisition of the right, title and interest of the land-owners under S. 15 is prescribed. By S. 27, it was provided that notwithstanding anything contained in the provisions of the foregoing sections of that chapter, the land-owner who held land, the annual land revenue of which exceeded Rs. 125/- per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free of all encumbrances. Sub-sec. (3) of S. 27 laid down that the land-owner whose right was acquired under sub-sec. (1) by the State Government shall be entitled to receive compensation to be determined by the compensation officer having regard to Ss. 17 and 18 of the Act, in accordance with the provisions of Schedule II; but in the case of such occupancy tenant who was liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his land-owner shall be computed in accordance with Schedule I. Provision was also made by the Act for State management of lands in certain eventualities. Article 31 of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1955 provides inter alia that a law for compulsory acquisition of property for public purposes shall not be called in question in any Court on the ground that the compensation provided by that law is not adequate, and by Art. 31A which was substituted by the Constitution (Fourth Amendment) Act, 1955 for the original Article with retrospective effect, it is provided that notwithstanding anything contained in Art. 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights.... Shall be deemed to have become void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Art. 14, 19 or 31; provided that where such law is made by the legislature of a State, the provisions of the Article shall not apply thereto unless, the law, having been reserved for the consideration of the President, has received his assent. The Abolition Act passed by the State Assembly was reserved for consideration of the President and it received his assent. The impugned Act contains provisions transferring the interest of the land-owners to the tenants in lands and for acquisition by the State of the property of the land-owners on payment to compensation under the Schedule provided in that behalf. This Court has held in Sri Ram Ram Narain v. State of Bombay, AIR 1959 SC 459 , that a statute the object of which is to bring about agrarian reform by transferring the interest of the land-owners to tenants falls within the class of statutes contemplated by Art. 31A (a) and is protected from the attack that it violates the fundamental rights enshrined in Arts. 14, 19 and 31 of the Constitution. Counsel appearing on behalf of the petitioners conceded and in our judgment rightly, that the principle of that case governed this case and the validity of S. 11 could not in view of Art. 31A be challenged. The validity of the provisions for acquisition by the State of the lands of the land-owners for compensation determinable in accordance with the provisions of Sch. II is also not liable to be challenged under Art. 31 read with Art. 31A.The legislative competence of the Legislative Assembly of the New Himachal State Assembly to enact the Abolition Act in 1954 cannot be and is not denied. There is no absolute bar against the authority of the Parliament to enact legislation which takes away vested rights provided the legislation falls within any of the legislative lists within the competence of the Parliament and it does not infringe any of the fundamental rights of the citizens. Again, no constitutional provision is violated by the enactment of Act 56 of 1958. We are also unable to hold that the authority of Parliament to validate the acts and proceedings of the assembly summoned by the Lieutenant-Governor in 1954 was exhausted when Art. 240 as it originally stood was amended by the Constitution (7th Amendment) Act, 1956 and Part C State of Himachal Pradesh ceased to exist.When the Validating Act was enacted, the Himachal Pradesh State had ceased to exist and by the operation ofthe States Reorganisation Act, 1956, that State had merged in the State of Punjab, but on that account, the authority of the Parliament to validate the proceedings of the body of persons which purported to function as the Legislative Assembly under Act 32 of 1954 was not extinguished. | 0 | 3,081 | 1,079 | ### 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:
New Himachal State Assembly to enact the Abolition Act in 1954 cannot be and is not denied. There is no absolute bar against the authority of the Parliament to enact legislation which takes away vested rights provided the legislation falls within any of the legislative lists within the competence of the Parliament and it does not infringe any of the fundamental rights of the citizens. Again, no constitutional provision is violated by the enactment of Act 56 of 1958. We are also unable to hold that the authority of Parliament to validate the acts and proceedings of the assembly summoned by the Lieutenant-Governor in 1954 was exhausted when Art. 240 as it originally stood was amended by the Constitution (7th Amendment) Act, 1956 and Part C State of Himachal Pradesh ceased to exist.When the Validating Act was enacted, the Himachal Pradesh State had ceased to exist and by the operation of the States Reorganisation Act, 1956, that State had merged in the State of Punjab, but on that account, the authority of the Parliament to validate the proceedings of the body of persons which purported to function as the Legislative Assembly under Act 32 of 1954 was not extinguished.10. Did the Abolition Act infringe the fundamental rights of the petitioners under Art. 19 or Art. 31 of the Constitution? By S. 11, the tenants were invested with the right to acquire the interests of the landowners in the lands held by them. It was provided that notwithstanding any law, custom or contract to the contrary, any tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of the Act, be entitled to acquire, on payment of compensation, the right, title and interest of the land-owner in the land held by him subject to certain terms and conditions set out therein. Section 14 permitted acquisition by the tenants of the rights of the landowners in a portion of the lands of the tenancy in certain specified circumstances. Section 15 sanctioned the acquisition by the State Government of the rights of the landowners by notification in the gazette declaring that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the land-owner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the land-owner. By S. 16, the method of computation of the compensation payable for acquisition of the right, title and interest of the land-owners under S. 15 is prescribed. By S. 27, it was provided that notwithstanding anything contained in the provisions of the foregoing sections of that chapter, the land-owner who held land, the annual land revenue of which exceeded Rs. 125/- per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free of all encumbrances. Sub-sec. (3) of S. 27 laid down that the land-owner whose right was acquired under sub-sec. (1) by the State Government shall be entitled to receive compensation to be determined by the compensation officer having regard to Ss. 17 and 18 of the Act, in accordance with the provisions of Schedule II; but in the case of such occupancy tenant who was liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his land-owner shall be computed in accordance with Schedule I. Provision was also made by the Act for State management of lands in certain eventualities. Article 31 of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1955 provides inter alia that a law for compulsory acquisition of property for public purposes shall not be called in question in any Court on the ground that the compensation provided by that law is not adequate, and by Art. 31A which was substituted by the Constitution (Fourth Amendment) Act, 1955 for the original Article with retrospective effect, it is provided that notwithstanding anything contained in Art. 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights.... Shall be deemed to have become void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Art. 14, 19 or 31; provided that where such law is made by the legislature of a State, the provisions of the Article shall not apply thereto unless, the law, having been reserved for the consideration of the President, has received his assent. The Abolition Act passed by the State Assembly was reserved for consideration of the President and it received his assent. The impugned Act contains provisions transferring the interest of the land-owners to the tenants in lands and for acquisition by the State of the property of the land-owners on payment to compensation under the Schedule provided in that behalf. This Court has held in Sri Ram Ram Narain v. State of Bombay, AIR 1959 SC 459 , that a statute the object of which is to bring about agrarian reform by transferring the interest of the land-owners to tenants falls within the class of statutes contemplated by Art. 31A (a) and is protected from the attack that it violates the fundamental rights enshrined in Arts. 14, 19 and 31 of the Constitution. Counsel appearing on behalf of the petitioners conceded and in our judgment rightly, that the principle of that case governed this case and the validity of S. 11 could not in view of Art. 31A be challenged. The validity of the provisions for acquisition by the State of the lands of the land-owners for compensation determinable in accordance with the provisions of Sch. II is also not liable to be challenged under Art. 31 read with Art. 31A.
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### Explanation:
By S. 11, the tenants were invested with the right to acquire the interests of the landowners in the lands held by them. It was provided that notwithstanding any law, custom or contract to the contrary, any tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of the Act, be entitled to acquire, on payment of compensation, the right, title and interest of the land-owner in the land held by him subject to certain terms and conditions set out therein. Section 14 permitted acquisition by the tenants of the rights of the landowners in a portion of the lands of the tenancy in certain specified circumstances. Section 15 sanctioned the acquisition by the State Government of the rights of the landowners by notification in the gazette declaring that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the land-owner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the land-owner. By S. 16, the method of computation of the compensation payable for acquisition of the right, title and interest of the land-owners under S. 15 is prescribed. By S. 27, it was provided that notwithstanding anything contained in the provisions of the foregoing sections of that chapter, the land-owner who held land, the annual land revenue of which exceeded Rs. 125/- per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free of all encumbrances. Sub-sec. (3) of S. 27 laid down that the land-owner whose right was acquired under sub-sec. (1) by the State Government shall be entitled to receive compensation to be determined by the compensation officer having regard to Ss. 17 and 18 of the Act, in accordance with the provisions of Schedule II; but in the case of such occupancy tenant who was liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his land-owner shall be computed in accordance with Schedule I. Provision was also made by the Act for State management of lands in certain eventualities. Article 31 of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1955 provides inter alia that a law for compulsory acquisition of property for public purposes shall not be called in question in any Court on the ground that the compensation provided by that law is not adequate, and by Art. 31A which was substituted by the Constitution (Fourth Amendment) Act, 1955 for the original Article with retrospective effect, it is provided that notwithstanding anything contained in Art. 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights.... Shall be deemed to have become void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Art. 14, 19 or 31; provided that where such law is made by the legislature of a State, the provisions of the Article shall not apply thereto unless, the law, having been reserved for the consideration of the President, has received his assent. The Abolition Act passed by the State Assembly was reserved for consideration of the President and it received his assent. The impugned Act contains provisions transferring the interest of the land-owners to the tenants in lands and for acquisition by the State of the property of the land-owners on payment to compensation under the Schedule provided in that behalf. This Court has held in Sri Ram Ram Narain v. State of Bombay, AIR 1959 SC 459 , that a statute the object of which is to bring about agrarian reform by transferring the interest of the land-owners to tenants falls within the class of statutes contemplated by Art. 31A (a) and is protected from the attack that it violates the fundamental rights enshrined in Arts. 14, 19 and 31 of the Constitution. Counsel appearing on behalf of the petitioners conceded and in our judgment rightly, that the principle of that case governed this case and the validity of S. 11 could not in view of Art. 31A be challenged. The validity of the provisions for acquisition by the State of the lands of the land-owners for compensation determinable in accordance with the provisions of Sch. II is also not liable to be challenged under Art. 31 read with Art. 31A.The legislative competence of the Legislative Assembly of the New Himachal State Assembly to enact the Abolition Act in 1954 cannot be and is not denied. There is no absolute bar against the authority of the Parliament to enact legislation which takes away vested rights provided the legislation falls within any of the legislative lists within the competence of the Parliament and it does not infringe any of the fundamental rights of the citizens. Again, no constitutional provision is violated by the enactment of Act 56 of 1958. We are also unable to hold that the authority of Parliament to validate the acts and proceedings of the assembly summoned by the Lieutenant-Governor in 1954 was exhausted when Art. 240 as it originally stood was amended by the Constitution (7th Amendment) Act, 1956 and Part C State of Himachal Pradesh ceased to exist.When the Validating Act was enacted, the Himachal Pradesh State had ceased to exist and by the operation ofthe States Reorganisation Act, 1956, that State had merged in the State of Punjab, but on that account, the authority of the Parliament to validate the proceedings of the body of persons which purported to function as the Legislative Assembly under Act 32 of 1954 was not extinguished.
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Saryug Singh (Dead) Thr. Lrs Vs. National Seeds Corporation | Kurian Joseph, J.1. Leave granted.2. The appellants challenge the order passed by the High Court wherein the total compensation has been worked out in terms of money and limited only to L 50,000/- (Rupees Fifty Thousand).3. According to the appellants, as per the order passed by the Labour Court and the learned Single Judge of the High Court the deceased employee is entitled to back wages for a period of 23 years.4. Having heard the learned counsel for the parties and having gone through the pleadings, it is fairly clear that it is a case of voluntary relinquishment of service. There is no case for the appellants that despite reporting for duty, the deceased employee was not permitted to join duty after 1986. On the contrary, it is seen from the records that the termination was after the publication of advertisement in the newspaper requiring the deceased employee to report for duty, failing which he was liable to be terminated.5. In that view of the matter, we wholly agree with the High Court that the deceased employee is not entitled to the back wages for the entire period. | 1[ds]4. Having heard the learned counsel for the parties and having gone through the pleadings, it is fairly clear that it is a case of voluntary relinquishment of service. There is no case for the appellants that despite reporting for duty, the deceased employee was not permitted to join duty after 1986. On the contrary, it is seen from the records that the termination was after the publication of advertisement in the newspaper requiring the deceased employee to report for duty, failing which he was liable to be terminated.5. In that view of the matter, we wholly agree with the High Court that the deceased employee is not entitled to the back wages for the entire period. | 1 | 206 | 131 | ### Instruction:
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Kurian Joseph, J.1. Leave granted.2. The appellants challenge the order passed by the High Court wherein the total compensation has been worked out in terms of money and limited only to L 50,000/- (Rupees Fifty Thousand).3. According to the appellants, as per the order passed by the Labour Court and the learned Single Judge of the High Court the deceased employee is entitled to back wages for a period of 23 years.4. Having heard the learned counsel for the parties and having gone through the pleadings, it is fairly clear that it is a case of voluntary relinquishment of service. There is no case for the appellants that despite reporting for duty, the deceased employee was not permitted to join duty after 1986. On the contrary, it is seen from the records that the termination was after the publication of advertisement in the newspaper requiring the deceased employee to report for duty, failing which he was liable to be terminated.5. In that view of the matter, we wholly agree with the High Court that the deceased employee is not entitled to the back wages for the entire period.
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### Explanation:
4. Having heard the learned counsel for the parties and having gone through the pleadings, it is fairly clear that it is a case of voluntary relinquishment of service. There is no case for the appellants that despite reporting for duty, the deceased employee was not permitted to join duty after 1986. On the contrary, it is seen from the records that the termination was after the publication of advertisement in the newspaper requiring the deceased employee to report for duty, failing which he was liable to be terminated.5. In that view of the matter, we wholly agree with the High Court that the deceased employee is not entitled to the back wages for the entire period.
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State of U.P. & Ors Vs. Vikash Kumar Singh & Ors | the learned Single Judge quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019 of Superintending Engineer for promotion to the post of Chief Engineer. 2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the State of U.P. filed the Special Appeal before the Division Bench and by the impugned judgment and order, the Division Bench of the High Court has dismissed the special appeal and has confirmed the judgment and order passed by the learned Single Judge. 3. Shri Sakha Ram Singh, learned Senior Advocate has appeared on behalf of the appellants and Shri Rana Mukherjee, learned Senior Advocate has appeared on behalf of the respondents – original writ petitioners. 4. Shri Sakha Ram Singh, learned Senior Advocate appearing on behalf of the State has vehemently submitted that admittedly the original writ petitioners did not fulfil the eligibility criteria as contained in Rule 5(iii) of the Rules, 1990. It is submitted that therefore the names of the original writ petitioners were rightly excluded from the eligibility list of Superintending Engineer (Civil) for the promotion to the post of Chief Engineer (Civil). It is submitted that as such the eligibility list prepared by the competent authority were in conformity with the provisions as contained in Rule 5(iii) of the Rules, 1990. 4.1 It is submitted that grant of relaxation under the Relaxation Rules, 2006 is discretionary and no writ of mandamus can be issued directing the competent authority to grant the relaxation. It is submitted that word used in Rule 4 of Relaxation Rules, 2006 is MAY and only in a case where the required number of eligible persons are not available in the field of eligibility. It is submitted that no employee can claim the relaxation as a matter of right. 4.2 It is therefore submitted that as admittedly the original writ petitioners did not fulfil the eligibility criteria of having completed 25 years of service, their names were not required to be included in the eligibility list for promotion to the post of Chief Engineer. It is submitted that the High Court has erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were in absolute consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the Rules, 1990. 4.3 Making above submissions, it is prayed to allow the present appeal. 5. Present appeal is opposed by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the respondents – original writ petitioners. It is submitted that in the facts and circumstances of the case and on giving cogent reasons the learned Single Judge rightly issued the writ of mandamus commanding the appellants – competent authority to grant relaxation to the original writ petitioners. It is submitted that the learned Single Judge rightly considered that the eligibility list has to be prepared applying the ratio of 1:3 so as to have more meritorious candidates. It is therefore submitted that as solely on technical ground of not completing 25 years of service, the names of the original writ petitioners were excluded and there are specific Relaxation Rules, 2006, which provide for relaxation in qualifying service, the High Court has not committed any error in issuing the writ of mandamus to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006. 6. We have heard the learned Senior Advocates appearing for the respective parties at length. 7. At the outset, it is required to be noted that the learned Single Judge issued the writ of mandamus commanding the competent authority to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 in qualifying service and consequently has quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required to be noted that as such as per Rule 5(iii) of the Rules, 1990, one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of service (including at-least three years service as Superintending Engineer). It is an admitted position that the original writ petitioners did not fulfill the eligibility criteria as they did not have the qualifying service of having completed 25 years of service. Thus, the eligibility lists were prepared by the department absolutely as per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules, 1990. Therefore, as such, the High Court ought not to have set aside the said eligibility lists, which as such were prepared absolutely in accordance with the Rules, 1990. 7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule 4 of Relaxation Rules, 2006 is MAY. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law. | 1[ds]7. At the outset, it is required to be noted that the learned Single Judge issued the writ of mandamus commanding the competent authority to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 in qualifying service and consequently has quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required to be noted that as such as per Rule 5(iii) of the Rules, 1990, one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of service (including at-least three years service as Superintending Engineer). It is an admitted position that the original writ petitioners did not fulfill the eligibility criteria as they did not have the qualifying service of having completed 25 years of service. Thus, the eligibility lists were prepared by the department absolutely as per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules, 1990. Therefore, as such, the High Court ought not to have set aside the said eligibility lists, which as such were prepared absolutely in accordance with the Rules, 1990.7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule 4 of Relaxation Rules, 2006 is MAY. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law. | 1 | 2,065 | 482 | ### Instruction:
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the learned Single Judge quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019 of Superintending Engineer for promotion to the post of Chief Engineer. 2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the State of U.P. filed the Special Appeal before the Division Bench and by the impugned judgment and order, the Division Bench of the High Court has dismissed the special appeal and has confirmed the judgment and order passed by the learned Single Judge. 3. Shri Sakha Ram Singh, learned Senior Advocate has appeared on behalf of the appellants and Shri Rana Mukherjee, learned Senior Advocate has appeared on behalf of the respondents – original writ petitioners. 4. Shri Sakha Ram Singh, learned Senior Advocate appearing on behalf of the State has vehemently submitted that admittedly the original writ petitioners did not fulfil the eligibility criteria as contained in Rule 5(iii) of the Rules, 1990. It is submitted that therefore the names of the original writ petitioners were rightly excluded from the eligibility list of Superintending Engineer (Civil) for the promotion to the post of Chief Engineer (Civil). It is submitted that as such the eligibility list prepared by the competent authority were in conformity with the provisions as contained in Rule 5(iii) of the Rules, 1990. 4.1 It is submitted that grant of relaxation under the Relaxation Rules, 2006 is discretionary and no writ of mandamus can be issued directing the competent authority to grant the relaxation. It is submitted that word used in Rule 4 of Relaxation Rules, 2006 is MAY and only in a case where the required number of eligible persons are not available in the field of eligibility. It is submitted that no employee can claim the relaxation as a matter of right. 4.2 It is therefore submitted that as admittedly the original writ petitioners did not fulfil the eligibility criteria of having completed 25 years of service, their names were not required to be included in the eligibility list for promotion to the post of Chief Engineer. It is submitted that the High Court has erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were in absolute consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the Rules, 1990. 4.3 Making above submissions, it is prayed to allow the present appeal. 5. Present appeal is opposed by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the respondents – original writ petitioners. It is submitted that in the facts and circumstances of the case and on giving cogent reasons the learned Single Judge rightly issued the writ of mandamus commanding the appellants – competent authority to grant relaxation to the original writ petitioners. It is submitted that the learned Single Judge rightly considered that the eligibility list has to be prepared applying the ratio of 1:3 so as to have more meritorious candidates. It is therefore submitted that as solely on technical ground of not completing 25 years of service, the names of the original writ petitioners were excluded and there are specific Relaxation Rules, 2006, which provide for relaxation in qualifying service, the High Court has not committed any error in issuing the writ of mandamus to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006. 6. We have heard the learned Senior Advocates appearing for the respective parties at length. 7. At the outset, it is required to be noted that the learned Single Judge issued the writ of mandamus commanding the competent authority to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 in qualifying service and consequently has quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required to be noted that as such as per Rule 5(iii) of the Rules, 1990, one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of service (including at-least three years service as Superintending Engineer). It is an admitted position that the original writ petitioners did not fulfill the eligibility criteria as they did not have the qualifying service of having completed 25 years of service. Thus, the eligibility lists were prepared by the department absolutely as per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules, 1990. Therefore, as such, the High Court ought not to have set aside the said eligibility lists, which as such were prepared absolutely in accordance with the Rules, 1990. 7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule 4 of Relaxation Rules, 2006 is MAY. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law.
### Response:
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### Explanation:
7. At the outset, it is required to be noted that the learned Single Judge issued the writ of mandamus commanding the competent authority to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 in qualifying service and consequently has quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required to be noted that as such as per Rule 5(iii) of the Rules, 1990, one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of service (including at-least three years service as Superintending Engineer). It is an admitted position that the original writ petitioners did not fulfill the eligibility criteria as they did not have the qualifying service of having completed 25 years of service. Thus, the eligibility lists were prepared by the department absolutely as per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules, 1990. Therefore, as such, the High Court ought not to have set aside the said eligibility lists, which as such were prepared absolutely in accordance with the Rules, 1990.7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule 4 of Relaxation Rules, 2006 is MAY. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law.
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N.D.M.C Vs. State Of Punjab Etc. Etc | an Act from the attack of unconstitutionality, that interpretation should always be accepted in preference to an alternative interpretation that might also be possible, under which the statute would be void. However, this Court has consistently followed a policy of not putting an unnatural and forced meaning on the words that have been used by the Legislature in the search for an interpretation which would save the statutory provisions. We are not free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory In Re the Central Provinces and Berar Act No. XIV of 1938, (1939) FCR 18 at p. 37 : (AIR 1939 FC 1 at p. 4); also see : Diamond Sugar Mills Ltd. v. State of U.P., 1961(3) SCR 242. 122. The Act and the Delhi Municipal Corporation Act are ordinary Municipal Legislations. They do not, and cannot, purport to be laws made by Parliament under Art. 289(2). There is no reason why such a strained reasoning should be employed to save some of the taxes that may be capable of being imposed on certain properties of State Governments. There seems to be no pressing reason for invoking the doctrine. Reddy, J. has, in the earlier part of his opinion, held that a large number of properties of State Governments would be exempt from taxes leviable under these Acts due to the operation of Art. 289(1). To employ such reasoning to construe Art. 289(2) in a bid to save what would only be a reduced amount, does not seem justified. 123. The practical effect of the directions recommended by Reddy, J. is also worth noticing. It is abundantly clear that the task of determining which of the activities of Governments are governmental and which are commercial, is an extremely difficult one. Reddy, J. entrusts this assignment to the assessing authorities under the Acts who can only be Municipal authorities. This is an issue which has confounded Courts in the U.S. and in Australia for several years. This issue was considered to be so troublesome by the Framers that they entrusted it to Parliament in the hope that it would fully deliberate the matter before enacting a comprehensive legislation. 124. In the In Re : The Delhi Laws Act case, AIR 1951 SC 332 this Court authoritatively held that the legislature cannot delegate its essential policy-making function. Over the years, this Court has elaborated this proposition to hold that the legislature can delegate some of its legislative functions provided it lays down the policy in clear terms. The legislature is required to declare the policy of law in unambiguous terms, lay down elaborate legal principles and provide illuminating standards for the guidance of the delegate. Even though this Court has, on occasions, sanctioned very broad delegations of taxing power to Municipal Bodies, to delegate the task of carving out the distinction between governmental and business functions of State Governments to Municipal authorities would clearly be against the interdiction in the Delhi Laws Act case as the assignment requires not only the making of policy, but indeed, the making of very difficult and challenging policy choices. Reddy, J. has noted that the Delhi Municipal Corporation Act provides exemptions in favour of activities that are capable of being classified as charitable purpose, public worship etc. and states that to ascertain the ambit of these categories is an equally difficult task which is already being discharged by the assessing authorities. However, the point that needs to be emphasised, is that S. 115 of the Delhi Municipal Corporation Act defines these terms and provides guidelines in respect thereof. However, there is no provision in the Delhi Municipal Corporation Act which states that the trading and business operations of State Governments would be subject to property taxes. The Act is equally silent on this aspect. Consequently, no guidelines in this behalf are to be found within the parameters of these legislations. Under these circumstances, in the complete absence of any statutory policy or any guidelines for the delegation of such a policy, we believe that it would be impermissible and hazardous to directly assign such a function, nay power, to executive Municipal authorities. 125. The decision whether the properties of State Governments occupied for commercial purposes should be subject to the levy of Union Taxes is one that is required by Art. 289(2) to be made by a legislation which specifies the activities which would be liable to tax. This decision cannot be entrusted to Municipal functionaries. For these reasons, we find ourselves unable to agree with Reddy, J. in his finding that the properties of State Governments occupied by them for trade or business purposes are subject to the levy of taxes under the Act and the Delhi Municipal Corporation Act. We may now summarise our conclusions : i) The central issue in the present matter, namely, whether the properties owned by the States which are situated within Union Territories are exempt from paying property taxes, was specifically answered in the affirmative in the Sea Customs case (AIR 1963 SC 1760 ); the observations in this regard are part of the ratio decidendi of the case and having been reaffirmed by a Constitution Bench which was hearing a litigation inter partes in the APSRTC case (AIR 1964 SC 1486 ), they constitute good law; ii) The definition of State provided in S. 3(58) of the General Clauses Act, which declares that the word `State would include `Union Territory, is inapplicable to Art. 246(4); iii) The term Union Taxation used in Art. 289(1) will ordinarily mean all taxes leviable by the Union and it includes within its ambit taxes on property levied within Union Territories; therefore, the States can avail of the exemption provided in Art. 289(1) in respect of their properties situated within Union Territories; iv) Property taxes levied by Municipalities within Union Territories are properly within the ambit of the exemption provided in Art. 289(1) and the States can avail of the exemption. | 0[ds]Analysis of the decisions rendered in the Sea Customs case and the APSRTC case44. The decision in the Sea Customs case, (1964 (3) SCR 787 : AIR 1963 SC 1760 ), was occasioned by the emanation of a proposal to introduce in Parliament a Bill to amend Section 20 of the Sea Customs Act, 1878, and Section 3 of the Central Excises and Salt Act, 1944. These amendments would have led to the imposition of indirect taxes, namely, excise and customs duties upon the properties of various States which were being used for purposes other than those specified in Article 289(2), i.e., for purposes not relating to trade or business. A number of State Governments objected that such a law would fall foul of the interdiction in Article 289(1) and, in view of the resulting controversy, the President referred, under Article 143, the issue of the constitutionality of the proposed amendments to this Court. The issue was decided by a majority of 5 : 4. It was held that the immunity granted to States in respect of Union Taxation under Article 289 extends only to those taxes that are directly leviable upon the property and income of the States; since excise and customs duties are indirect taxes, they would not fall within the ambit of the exemption in Article 289 and Parliament could impose such duties upon the property and income of the States. There were two opinions outlining the majority view and an equal number for the minority. Sinha, C.J. delivered the first of the majority judgments on behalf of himself, Gajendragadkar, Wanchoo and Shah, JJ. while Rajagopala Ayyangar, J. delivered a separate, concurring opinion. S.K. Das, J. delivered the first of the minority opinions on behalf of himself, Sarkar and Das Gupta, JJ. while Hidayatullah, J. rendered a separate minority opinion.46. In his opinion for the majority, Sinha, C.J. has referred to the essential contentions urged before the Court. The Union urged that the exemption in Clause (1) of Article 289 be interpreted restrictively, limiting its applicability to direct taxes on the property and the income of States; the States, on the other hand, canvassed for an expansive interpretation which would exempt them from taxes having any relation whatsoever to their property and income. The learned Chief Justice noted that it was not disputed that the exemption in Article 289(1) was, as far as taxes on income are concerned, restricted to Taxes other than on agricultural income, which is the only entry (Entry 82) in List I of the Seventh Schedule which enables Parliament to legislate on taxes relating to income. The learned Chief Justice considered this to be a significant fact as it meant that if the income of State was exempt only from taxes on income, the juxtaposition of the words property and income in Article 289(1) would lead to the inference that property is also exempt only from direct taxes on property. However, it was pointed out by the States that List I does not contain any specific tax on property which would enable Parliament to pass a law relating to taxes on property and, that being so, the intention of the framers of the Constitution must have been to exempt the property of States from all taxes, be they direct or indirect. To meet this argument, the learned Solicitor General, appearing for the Union, put forth several arguments, one of which came to be accepted by the learned Chief Justice as the main plank upon which he based his rejection of the contention of the States. Since these observations are directly relevant to the present case, they may be extracted here at p. 812 (of SCR) (at Pp. 1772-73 of AIR).It is true that List-I contains no tax directly on property like List-II, but it does not follow from that that the Union has no power to impose a tax directly on property under any circumstances. Article 246(4) gives power to Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State. List. This means that so far as Union territories are concerned Parliament has power to legislate not only with respect to items in List I but also with respect to items in List II. Therefore so far as Union territories are concerned, Parliament has power to impose a tax directly on property as such. It cannot therefore be said that the exemption of States property under Article 289(1) would be meaningless as Parliament has no power to impose any tax directly on property. If a State has any property in any Union territory that property would be exempt from Union taxation on property under Article 289(1). The argument therefore that Article 289(1) cannot be confined to tax directly on property because there is no such tax provided in List I cannot be accepted.Thereafter, having referred to the language of Article 285 and the intention of the framers as perceived by him, the learned Chief Justice came to the conclusion that the immunity granted by Articles 285 and 289 was of similar ambit and extended only to direct taxes without exempting indirect taxes such as excise and customs duties.Thereafter, having referred to the language of Article 285 and the intention of the framers as perceived by him, the learned Chief Justice came to the conclusion that the immunity granted by Articles 285 and 289 was of similar ambit and extended only to direct taxes without exempting indirect taxes such as excise and customs duties.47. Das, J., in his dissenting opinion, noted the objection of the States that List I had no entry which would enable Parliament to levy a tax directly on property. He took note of the counter-arguments advanced by the learned Solicitor General in relation to this aspect but could not bring himself to agree with the correctness of those propositions. While referring to the argument on Article 246(4), he noted (at p. 843) :. . . .It would be a case of much ado about nothing if the Constitution solemnly provided for an exemption against property tax on State property only for such rare cases as are contemplated in Art. 246(4), the situation of State property in territory not included in a State. Such situation would be very rare, and could have hardly necessitated a solemn safeguard at the inception of the Constitution when the States were classed under Part A or Part B of the First Schedule. If the wider interpretation of Clause (1) of Article 289 is accepted, such property would also be exempted from Union taxation except in cases covered by Clause (2) of the Article. We find it difficult to accept the contention that clause (1) of Article 289 was meant only for cases covered by Article 246(4) . . .At this juncture, we may note that both Mr. Rao and Mr. Ganguli were at pains to point out that though Das, J. rejected the overall contention of the learned Solicitor General, he had, by stating that the exemption could not have been provided only for such rare cases as are contemplated in Article 246(4), implicitly accepted that these cases would fall within the exemption in Article 289(1).48. Rajagopala Ayyangar, J., in his separate majority judgment, makes a specific reference to this contention of the learned Solicitor General (at pp. 918-19) but, aside from stating that the submissions of the learned Solicitor General are not without force (at p. 919), he did not make any further reference to the matter. Hidayatuallah, J., in his separate minority opinion, did not advert to this issue.49. The preceding analysis reveals that the issue at hand was specifically answered by this Court in the Sea Customs case, (AIR 1963 SC 1760 ). We find it difficult to accept Mr. Sens contention that the observations of Sinha, C.J. were made by way of obiter dicta. Though the issue of legislations applicable in Union Territories was not specifically before the Court, it did arise for consideration during its analysis of the power of Parliament to levy taxes directly upon property. The latter question was squarely before the Court and the issue relating to Union Territories, though incidental to the main question, necessarily required consideration. The observations of Sinha, C.J. are unequivocally in favour of the position adopted by the States before us, who find themselves in the enviably advantageous position of being able to draw sustenance from even the observations in the dissenting judgment of Das, J.50. The decision in the Sea Customss case, (AIR 1963 SC 1760 ), was reaffirmed by a Constitution Bench of this Court in the APSRTC case, (1964 (7) SCR 17 : AIR 1964 SC 1486 ), which was a matter relating to assessment of income-tax. The facts of that case are not directly relevant for our purpose but, what is of considerable interest to us is the manner in which the scheme of Article 289 and its three clauses were construed. Speaking for the Court, Gajendragadkar, C.J. outlined the scheme of Article 289 (at p. 25) (of SCR) (at p. 1491 of AIR) : which can be stated as follows : The general proposition that flows from Clause (1) is that ordinarily, the income derived by a State both from governmental and non-governmental or commercial activities shall be immune from Income-tax levied by the Union. Clause (2) then provides an exception and empowers Parliament to make a law imposing a tax on the income derived by the Government of a State from trade or business carried on by it, or on its behalf. If Clause (1) had stood by itself, it would not have been possible to include within its purview income derived by a State from commercial activities but since Clause (2) empowers Parliament to enact a law levying taxes on such activities of a State, the inescapable conclusion is that these activities must be deemed to have been included in Clause (1) and that alone can be the justification for the words in which Clause (2) has been couched in the Constitution. Thereafter, Clause (3) empowers Parliament to declare by law that any trade or business would be taken out of the purview of Clause (2) and restore it to the area covered by Clause (1) by declaring that the said trade or business is incidental to the ordinary functions of Government. In other words, Clause (3) is an exception to the exception prescribed by Clause (2). Whatever trade or business is declared to be incidental to the ordinary functions of Government, would cease to be governed by Clause (2) and would then be exempt from Union taxation.51. These observations of Gajendragadkar, C.J. having been made in the context of Income-tax levied in the facts of that case, mention only taxes relating to income. They are equally applicable to the taxes relating to property referred to in Article 289. The essence of this analysis is that Clause (3) of Article 289 is an exception to Clause (2), which in turn is an exception to the first clause of the Article.Analysis of this Courts previous rulings on the Constitutional status of Union Territories.58. These cases are useful for our purpose to the limited extent that they declare that Union Territories are not part of the Central Government and are, to that extent, distinct Constitutional entities.64. This view of the learned Judge does seem to have considerable force and it is also to be remembered that Hidayatullah, J. had doubted the correctness of the proposition laid down in Ram Kishores case (AIR 1966 SC 644 ) on the ground that the proper reference in it should have been to Art. 372A, rather than to Art. 372. However, we must refrain from making any comment because the issue whether or not the General Clauses Act applies to the interpre-tation of the Constitution is not properly put before us in the facts and circumstances of the present case; what is more, no arguments have been canvassed before us on this issue. For the present, we can draw support from the observations in Kanniyans case (AIR 1968 SC 637 ) as affirmed in the Advance Insurance case (AIR 1970 SC 1126 ) to the effect that the definition in S. 3(58) of the General Clauses Act is repugnant to the subject and context of Art. 246. We can, therefore, proceed on the assumption that for our purposes, a Union Territory is not a State; we must, however, hasten to add that this assumption willl be open to reconsideration subsequent to our analysis of the Constitutional scheme regarding the issues before us.60. T.M. Kanniyan v. Income-tax Officer, Pondicherry, 1968(2) SCR 103, was a case in which the petitioners had challenged the vires of a regulation by which the President had, in exercise of powers under Article 240, repealed the laws in force in relation to Income-tax within the Union Territory of Pondicherry and had made the Income-tax Act, 1961 applicable to it. Explaining that Parliament, and through it the President, had plenary powers to make laws for Union Territories on all matters, Bachawat, J., speaking for the Constitution Bench, stated as follows (at Pp. 108-109) (of SCR) (at p. 641 of AIR) :Parliament has plenary power to legislate for the Union Territories with regard to any subject. With regard to Union Territories distrubution of legislative powers . . . (The) inclusive definition (in Section 3(58) of the General Clauses Act) is repugnant to the subject and context of Article 246. There, the expression State means the States specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union Territories. That is why Parliament is given power by Article 246(4) to legislate even with respect to matters enumerated in the State List. If the inclusive definition of State in Section 3(58) of the General Clauses Act were to apply to Article 246(4), Parliament would have no power to legislate for the Union Territories with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Article 239A for the Union Territories, there would be no legislature competent to legislate on those matters; moreover, for certain territories such as the Andaman and Nicobar Islands, no legislature can be created under Article 239A, and for such territories there can be no authority competent to legislate with respect to matters enumerated in the State List. Such a construction is repugnant to the subject and context of Article 246. It follows that in view of Article 246(4), Parliament has plenary powers to make laws for Union Territories on all matters.61. The Court, therefore, held that Parliament was empowered to make laws for Union Territories on all matters and the regulation made by the President in exercise of his powers under Article 240 was valid. The ratio of this decision, therefore, is that the definition of State provided by Section 3(58) of the General Clauses Act would not apply for the purposes of Article 246. This ratio is equally applicable at the present moment for, despite several changes having been made in respect of Union Territories since the decision in Kanniyans case, of the seven existing Union Territories, as many as five do not have Legislatures of their own. The controversy was not, however, put to rest by the decision in Kanniyans case.62. In Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal, 1970(3) SCR 881, the main issue before another Constitution Bench was whether the word State used in Entry 80 of List I of the Seventh Schedule could be said to exclude the application of the definition in Section 3(58) of the General Clauses Act. Relying on the decision in, Kanniyans case, (AIR 1968 SC 637 ). Hidayatullah, J. held that, ordinarily, the definition would apply in the interpretation of the Constitution unless it is repugnant to the subject or context. However, he noted, that after the Seventh Amendment Act where Union Territories have been mentioned as separate entities, the distinction between Union Territories and States cannot be lost sight of. He expressly approved the reasoning of Bachawat, J. in holding that in the context of Article 246, the definition provided in Section 3(58) would not apply; however, on the facts and in the circumstances of the case before him, he felt that the subject and context of Entry 80 of the Union List required the application of the definition given in Section 3(58). While referring to the decision in Ram Kishores case, (AIR 1966 SC 644 ). Hidayatullah, J. noted that this decision was per incuriam for the reason that it referred to Article 372 whereas the proper reference ought to have been to article 372A.64. This view of the learned Judge does seem to have considerable force and it is also to be remembered that Hidayatullah, J. had doubted the correctness of the proposition laid down in Ram Kishores case (AIR 1966 SC 644 ) on the ground that the proper reference in it should have been to Art. 372A, rather than to Art. 372. However, we must refrain from making any comment because the issue whether or not the General Clauses Act applies to the interpre-tation of the Constitution is not properly put before us in the facts and circumstances of the present case; what is more, no arguments have been canvassed before us on this issue. For the present, we can draw support from the observations in Kanniyans case (AIR 1968 SC 637 ) as affirmed in the Advance Insurance case (AIR 1970 SC 1126 ) to the effect that the definition in S. 3(58) of the General Clauses Act is repugnant to the subject and context of Art. 246. We can, therefore, proceed on the assumption that for our purposes, a Union Territory is not a State; we must, however, hasten to add that this assumption willl be open to reconsideration subsequent to our analysis of the Constitutional scheme regarding the issues before us.69. Section 154, in material terms, provided that the property of the Federal Government would be exempt from all taxes imposed by Provinces and Federated States and the local authorities within them. The proviso added that, in the absence of any Federal law stipulating otherwise, those properties of the Federal Government which were subject to the levy of taxes before the commencement of Part III of that Act would continue to be liable to pay them. The exemption in S.154, therefore,did not extend to such taxes, including taxes levied under Municipal laws. It is to be noted that S. 154 did not provide for an exemption in respect of the income of the Federal Government primarily because the Provinces lacked the legislative competence to enact laws levying taxes on income.In response to a query from us, Mr. Sen sought to find the reason for the existence of the exemption in S. 155(1); it appears that the purpose was to avoid the liabilities imposed by Ss. 3 and 9 of the Income-tax Act, 1912 (1922) upon the Pro-vinces.71. Comparing the text of Ss. 154 and 155, it becomes clear that even under the scheme of the 1935 Act, the ambit of the reciprocal immunities was not equal in length and breadth; while S. 154 exempted the property of the Federal Government from all taxes, the Provincial Governments and Rulers of Federated States were entitled to an exemption only in respect of lands or buildings situated in British India and income accruing thereof. This feature will gain some importance when we deal with the comparative Constitutional position at a later stage.It therefore becomes clear that, under the scheme of the 1935 Act, Federal Taxation included taxes leviable by the Federal Government in the Chief Commissioners Provinces and that the properties of the Provinces and the Rulers of the Federated States situated within these Chief Commissioners Provinces would be exempt from such Federal Taxation75. The present Art. 289 was clause 207 in the Draft Constitution prepared by the Constitutional Adviser. It provided that the Government of a unit would not be liable to Federal Taxation in respect of lands or buildings situated within the territories of the Federation or income accruing, arising or received within such territories; the two exceptions provided were in favour of (a) any income accruing to a units Government through trade or business and (b) the personal property or the personal income of the Ruler of Indian State. As we have observed, under S. 155, the Provinces and Federated States were liable to taxation only in respect of trade and business operations carried on by them outside their own territories. To that extent Clause 207 had made a substantial departure.81. As we have already noticed, the Constitutional Adviser relied upon the decisions in McCullochs case (1816-19 (4) Law Ed 579) and The South Carolina case (1905 (199) US 437), for justifying the reduction in the ambit of the immunity of States from Union Taxation rather than for establishing reciprocal immunity between the States and the Union. Furthermore, in the Constituent Assembly, Mr. Alladi Krishnaswami Ayyar had doubted the applicability of the doctrine to the Indian Constitution and had instead commended the present scheme whereby the troublesome issue of determining which of the trading and business operations of State should be subject to Union Taxation has been left to Parliament; while enacting such a law Parliament would be forced to cater to the interests of the States on account of the presence of their representatives in it. The usefulness of any further discussion on the applicability of this doctrine to the Indian Constitution is rendered questionable by virtue of the fact that this Court had, on earlier occasions, rejected it. In State of West Bengal v. Union of India, 1964(1) SCR 371, Sinha, C.J., speaking for the majority in a six-Judge Constitution Bench expressly held (at p. 407) that the doctrine of immunity of instrumentalities had been rejected by the Privy Council as inapplicable to the Canadian and Australian Constitutions and having practically been given a go by in the United States, it was equally inapplicable to the Indian Constitution. In the APSRTC case (1964 (7) SCR 17 ) (supra), (at p. 24) : (AIR 1964 SC 1486 at p. 1491), the Court rejected the contention of the Advocate-General of Andhra Pradesh urging it to adopt the American doctrine, by relying upon these observations of Sinha, C.J.82. It is, therefore, clear that in seeking a solution to the problem faced by us, we must rely primarily on the bare text of Arts. 285 and 289. Comparing these provisions, it becomes evident that the Constitution does envisage some form of inter-governmental immunity. Article 286 (1), while exempting the property of the Union from all taxes, does not attempt to provide an exemption in respect of income as the States do not possess legislative competence to levy taxes on income as such; however, taxes relating to income that have a bearing on property such as the taxes on agricultural income levied by using Entry 46 of the State List will also be exempt in view of the wide-ranging, all-embracing nature of the exemption. Article 285(2) saves, until Parliament by law decides otherwise, all pre-Constitutional taxes applicable to Union property.83. With respect to Article 289, we have already examined the manner in which this provision was analysed by this Court in the APSRTC case (AIR 1964 SC 1486 ). We are in agreement with the proposition that the three clauses of Article 289 are interlinked, in that, Clause (3) is an exception to Clause (2) which in turn is an exception to Clause (1). As we have noticed for ourselves, the framers of the constitution had consciously conferred Parliament with the option of deciding which of the trading and business activities of the States would be subject to the levy of Union taxes. So, while Article 289(1) generally exempts the property and income of the States from Union taxation, Clauses (2) and (3) grant to Parliament the aforementioned prerogatives.84. Having understood the scheme of Arts. 285 and 289, we must sharply focus on the specific wording of Art. 289(1) and, in particular, on the meaning of the phrase union Taxation. It may be noted that the phrase union Taxation appears in only two places in the entire Constitution _ in the marginal heading of Art. 289 and in the main text of Art. 289(1). It is suggested that some guidance may be obtained by analysing the term State Taxation which appears in the marginal heading of Art. 285 and has been described in the text of Art. 285(1) as all taxes imposed by a State. On that reasoning, Union Taxation would mean all taxes imposed by the Union.86. Our attention has been drawn towards the provisions contained in Part XII of the Constitution which has a bearing on the scheme of the Constitution with respect to financial relations between the Union and the States. Since this aspect and its relevance to Art. 289(1) was discussed at length in the Sea Customs case (1964 (3) SCR 787 : AIR 1963 SC 1760 ), We may advert to those observations. Das, J. (at p. 852) (of SCR) : (at p. 1786 of AIR), was of the opinion that the provisions of Part XII of the Constitution would have no bearing on the import of Arts. 285 and 289 which ought to be construed on their own terms. Sinha, C.J., however, analysed these provisions at length and the relevant observations in this behalf may be reproduced (at pp. 809-10) (of SCR) : (at pp. 1771-72 of AIR) :It will thus appear that Part XII of the Constitution has made elaborate provisions as to the revenues of the Union and of the States, and as to how the Union will share the proceeds of duties and taxes imposed by it and collected either by the Union or by the States. Sources of revenue which have been allocated to the Union are not meant entirely for the purposes of the Union but have to be distributed according to the principles laid down by Parliamentary legislation as contemplated by the Articles aforesaid. Thus all the taxes and duties levied by the Union and collected either by the Union or by the States do not form part of the Consolidated Fund of India but many of those taxes and duties are distributed amongst the States and form part of the Consolidated Fund of the States. Even those taxes and duties which constitute the Consolidated Fund of India may be used for the purposes of supplementing the revenues of the States in accordance with their needs.......... The financial arrangement and adjustment suggested in Part XII of the Constitution has been designed by the Constitution-makers in such a way as to ensure an equitable distribution of the revenues between the Union and the States, even though those revenues may be derived from taxes and duties imposed by the Union and collected by it or through the agency of the States.......... It will thus be seen that the powers of taxation assigned to the Union are based mostly on considerations of convenience of imposition and collection and not with a view to allocate them solely to the Union; that is to say, it was not intended that all taxes and duties imposed by the Union Parliament should be expended on the activities of the Centre and not on the activities of the States.......... The resources of the Union Government are not meant exclusively for the benefit of the Union activities; they are also meant for subsidising the activities of the States in accordance with their respective needs, irrespective of the amounts collected by or through them. In other words, the Union and the States together form one organic whole for the purposes of utilisation of the resources of the territories of India as a whole.87. We are of the view that an analysis of some of the provisions in Part XI, Chapter I of the Constitution, which deals with the legislative relations between the Union and the States will be crucial to the determination of the central issue in this case. We may first notice certain provisions in the Constitution which enable Parliament to make laws for subjects contained in the State List, to which our attention was drawn by counsel for the appellants as also the learned Attorney General. We must note that these provisions conceive of extraordinary situations. Article 249 provides for a situation where, if the Council of States declare by a resolution that it is necessary in the national interest to do so, Parliament may make laws in respect of matters enumerated in the State List. Article 250 empowers Parliament to make laws for the whole or any part of India in respect of matters enumerated in the State List while a Proclamation of Emergency is in operation. Article 252 empowers Parliament to make laws with respect to matters enumerated in the State List if two or more States resolve that such a course of action is desirable. Article 253 reserves to Parliament the exclusive power to make laws for the whole or any part of the territory of India for implementing any treaty. Agreement or convention with any other country or any decision made at any international conference, association or any other body. The Emergency Provisions outlined in Part XVIII of the Constitution and comprising Articles 352 to 360 conceive of special situations in which Parliament is empowered to enact laws on matters in List II.Having analysed the scheme of Part VIII of the Constitution including the changes wrought into it, we are of the view that despite the fact that, of late, Union territories have been granted greater powers, they continue to be very much under the control and supervision of the Union Government for their governance. Some clue as to the reasons for the recent amendments in Part VIII may be found in the observations of this Court in Ramesh Birchs case (AIR 1990 SC 560 ), which we have extracted earlier. It is possible that since Parliament may not have enough time at its disposal to enact entire volumes of legislations for certain Union Territories, it may decide, at least in respect of those Union Territories whose importance is enhanced on account of the size of their territories and their geographical location, that they should be given more autonomy in legislative matters. However, these changes will not have the effect of making such Union Territories as independent as the States. This point is best illustrated by referring to the case of the National Capital Territory of Delhi which is today a Union Territory and enjoys the maximum autonomy on account of the fact that it has a Legislature created by the Constitution. However, Clauses 3(b) and 3(c) of Art. 239AA make it abundantly clear that the plenary power to legislate upon matters affecting Delhi still vests with Parliament as it retains the power to legislate upon any matter relating to Delhi and, in the event of any repugnancy, it is the Parliamentary law which will prevail. It is, therefore, clear that Union Territories are in fact under the supervision of the Union Government and it cannot be contended that their position is akin to that of the States. Having analysed the relevant Constitutional provisions as also the applicable precedents, we are of the view that under the scheme of the Indian Constitution, the position of the Union Territories cannot be equated with that of the States. Though they do have a separate identity within the Constitutional framework, this will not enable them to avail of the privileges available to the states.89. It has been urged before us that the phrase Union Taxation has to be interpreted in the context of Art. 246, which deals with the subject matter of laws made by Parliament and the State Legislatures, and that the context of Union Taxation should be limited to those matters falling within Arts. 246(1), where Parliament has the legislative competence to levy taxes with respect to matters enumerated in the Union List. We see no reason why such a limiting principle must be read into the definition of the phrase Union Taxation. In our view, the term can and should be given the widest amplitude, allowing it to encompass all taxes that are levied by the authority of Parliamentary laws. Though the amplitude of the term Union Taxation was not expressly before the Court in the Sea Customs Case (AIR 1963 SC 1760 ), it is clear from an analysis of the majority judgments that the learned Judges considered the term Union Taxation to mean all taxes leviable by the Union. As Clause (4) of Art. 246 itself envisages situations where Parliament is to make laws in respect of matters in the State List, it cannot be said that this is a rare or an unusual circumstance. The Constitution does not contain any provision which would indicate that the definition of Union Taxation should be restrictively interpreted so as to be within the confines of Art. 246(1). The specific situations envisaged in Arts. 249, 250, 252, 253 and the Emergency Provisions in Part XVIII of the Constitution do not make for the creation of any anomalous situations. These Articles, which provide for unusual exercises of Parliamentary power involving the matters enumerated in the State List, can be regarded as exceptions to the general rule. We are, therefore, of the view that, unless the context requires otherwise _ as in the case of Arts. 249, 250, 252, 253 and the Emergency Provisions in Part XVIII of the Constitution _ the broad definition of Union Taxation embracing all taxes leviable by Parliament ought to be accepted for the purpose of interpreting Art. 289(1).90. As already noticed by us, under the scheme of the 1935 Act, those lands or buildings of the Provinces and Federated States which were situated within the Chief Commissioners Provinces were, by virtue of S. 155(1), exempted from Federal Taxation. There can be no dispute about such a construction of the provision for, otherwise, the exemption in S. 155(1) would have no meaning. Section 155(1) formed the basis for the present Art. 289(1) and, having closely examined the various stages by which Art. 289(1) replaced S. 155(1), we find that this position was never sought to be deviated from. The presumption, therefore, is that it was the intention of the framers of the Constitution to maintain the status quo with respect to the position regarding the Chief Commissioners Provinces which are now called Union Territories. That presumption is further reinforced by the general scheme of the Constitution which furthers the interpretation that we have sought to give to Art. 289(1) and its applicability in respect of the Union Territories.91. Unlike other Federations, the Union of India has a sizeable territory of its own comprising the Union Territories which have been specified in the First Schedule to the Constitution. Therefore, the limited reciprocal inter-governmental immunity bestowed by the Constitution in Arts. 285 and 289 is given fuller meaning by virtue of the adoption of the wider meaning of Union Taxation; this would mean that, just as the properties of the Union are exempt from taxes on property leviable by the States, the properties of the States will also be exempt from taxes on property leviable by the Union in areas falling within its territorial jurisdiction.94. In our opinion, there is no warrant for an authoritative pronouncement upon this aspect for, even if we assume that Mr. Sens contention is correct and that all these Entries do in fact empower Parliament to levy taxes directly on property, it would not in any way detract from the correctness of our interpretation that the levy of taxes under Art. 246(4) is covered by the phrase Union Taxation in Art. 289(1); these Entries would then provide additional areas in respect of which the States can claim exemption from Union Taxation under Art. 289(1), thus lending greater weight to the solemnity and the actual worth, in real terms, of the phraseology of Art. 289(1).95. However, we find ourselves unable to agree with Mr. Sen when he contends that the entries cited by him were the only instances kept in contemplation by the framers at the time of the drafting of Art. 289(1). If that were so, the ambit of the exemption would traverse an extremely narrow field which would then lend credence to the observation of Das, J. in the Sea Customs case (AIR 1963 SC 1760 ), albeit made in the converse context, that the exemption in Art. 289(1) would amount to much also about nothing.Section 61 of the Act, which is the charging section, at the relevant time, empowered the Municipality to levy a tax payable by the owner on lands and buildings subject to, and to the extent of, the qualifying conditions provided therein. It is clear from an analysis of this provision that it provides for the levy of a consolidated tax, combining within it the tax element and the service element. Section 51 of the Act provides for the constitution of a Municipal Fund and states that all sums received by the Municipal Committee are to be credited to it. Section 52 of the Act provides the manner in which the sums collected in the Municipal Fund are to be applied by the Municipal Committee. Our attention has also been drawn towards analogous provisions in the New Delhi Municipal Committee Act and the Delhi Municipal Committee Act to form the foundation of the argument that, under all these legislations, the Municipalities have been vested with a great deal of financial autonomy; they have the power to fix their own budgets, levy taxes within prescribed limits, collect the proceeds of such imposition which are to be diverted to Municipal Funds which function entirely under the supervision of the Committees. It is argued that such a stance is further reinforced by the introduction of Part IXA into the Constitution which allows for Municipalities to be vested with substantial powers, including the power to tax, thereby providing constitutional support. The argument, therefore, is that now that the Constitution itself recognises Municipal taxes as a separate category of taxes, they should not be construed to fall within the exemption provided by Art. 289(1). Another limb of this submission is that while under Art. 285, taxes imposed by any authority within a State, which would necessarily include Municipal taxes, have been expressly exempted, Art. 289 does not provide for any such facility and, to that extent, taxes levied by Municipalities within the Union Territories are not covered by the exemption in Art. 289(1).98. We have great difficulty in accepting this assertion. Article 265 of the Constitution emphatically mandates that no tax shall be levied or collected except by authority of law. Under the framework of the Constitution there are two principal bodies which have been vested with plenary powers to make laws, these being the Union Legislature, which is described by Art. 79 as Parliament for the Union and the State Legislatures, which are described by Art. 168 in the singular as Legislature of a State. While certain other bodies have been vested with legislative power, including the power of levying taxes, by the Constitution for specific purposes, as in the case of District Committees and Regional Councils constituted under the aegis of the Sixth Schedule to the Constitution, the plenary power to legislate, especially in matters relating to revenue, still vests with the Union and the State Legislatures. Even if the submission that Municipalities now possess, under Part IXA of the Constitution, a higher juridical status is correct, the extension of that logic to the proposition that they have plenary powers to levy taxes is not, as is clear from a perusal of the relevant part of Art. 243X of the Constitution99. Article 243-B provides that this provision will be applicable to Union Territories and the reference to the Legislature of a State would apply, in relation to a Union Territory having a Legislative Assembly, to that Legislative Assembly.100. It is, therefore, clear that even under the new scheme, Municipalities do not have an independent power to levy taxes. Although they can now be granted more substantial powers than even before, they continue to be dependent upon their parent Legislatures for the bestowal of such privileges. In the case of Municipalities within States, they have to be specifically delegated the power to tax by the concerned State Legislature. In Union Territories which do not have Legislative Assemblies of their own, such a power would have to be delegated by Parliament. Of the rest, those which have Legislative Assemblies of their own would have to specifically empower Municipalities within them with the power to levy taxes.101. We have already held that despite the fact that certain Union Territories have Legislative Assemblies of their own, they are very much under the supervision of the Union Government and cannot be said to have an independent status. Under our constitutional scheme, all taxation must fall within either of two categories : State Taxation or Union Taxation. Since it is axiomatic that taxes levied by authorities within a State would amount to State taxation, it would appear that the words or by any authority within a State have been added in Art. 285(1) by way of abundant caution. It could also be that these words owe their presence in the provision to historical reasons; it may be noted that S. 154 of the 1935 Act was similarly worded. The fact that Art. 289(1), which in its phraseology is different from S. 155 of the 1935 Act having been drafted by the Drafting Committee to meet specific objections, does not contain words similar to those in Art. 285(1), will not in any way further the case of the appellant, because the phrase Union Taxation will encompass Municipal taxes levied by Municipalities in Union Territories.102. Before we part, we must refer to Part IV of the judgment of Jeevan Reddy, J. where Cl. (2) of Art. 289 has been invoked to validate the levy of taxes under the Act and the Delhi Municipal Corporation Act upon those properties of State Governments which are being occupied for commercial or trade purposes.103. At the outset, we must express our great reluctance to deal with this proposition, for it is not based on any contention advanced by any of the counsel who appeared before us, either in their written pleadings or in their oral submissions. That is not because we feel constrained to restrict ourselves to the parameters prescribed by the submissions of counsel, but because we feel that the opposite side did not have a fair opportunity to answer the line of reasoning adopted in that behalf. The view taken by Reddy, J. has the effect of imposing considerable tax liabilities upon the properties of the State Governments and, in our view, it would only be proper that their views in this behalf be obtained before visiting them with such liabilities. We have only the rule of caution in mind which warns that ordinarily, Courts should, particularly in constitutional matters, refrain from expressing opinions on points not raised or not fully and effectively argued by counsel on either side.104. Be that as it may, we must, for the record, express ourselves on the view taken by Reddy, J. after closely examining it. Reddy, J. begins his examination of the issue by noting that the Act, the Delhi Municipal Corporation Act and the New Delhi Municipal Committee Act contain specific provisions exempting the properties of the Union from local taxation in accordance with Art. 285. It is then stated that since none of these Acts contain similar exemptions in favour of the properties of States, it is clear that they purport to levy taxes on them. This is followed by the observation that though the States seek an exemption from such levies on the basis of Cl. (1) of Art. 289, as per the ratio of the APSRTC case (AIR 1964 SC 1486 ), Clause (1) has to be read in the context of Cls. (2) and (3) of that Article. This would, it is stated, lead to the consequence that if a Parliamentary law within the meaning of Cl. (2) of Art. 289 is made, the area covered by that law would be removed from the field occupied in Cl. (1); for support, an analogy is drawn from the decision in R.C. Cooper v. Union of India, 1970(1) SCC 248.105. Thereafter, the meaning and scope of Art. 289 as well as its underlying objective are ascertained by contrasting it with S. 155 of the 1935 Act. The use of the words lands and buildings in S. 155(1) is analysed to arrive at the conclusion that these words were included to empower the federal legislature to levy taxes on lands and buildings situated within the Chief Commissioners provinces. It is then noted that Art. 289 uses the wider expression property, but that the same reasoning holds good for the present Union Territories, making the property and income of States situated within Union Territories exempt from Union Taxation. With respect to the proviso to S. 155(1), it is observed that the provision was automatically applicable on its own force. It did not define the trading and business operations of Provincial Governments, nor did it specify which of these operations would be subject to Federal Taxation. It is then stated that the same position continues in Art. 289 with the only difference being the requirement of the enactment of a law by Parliament in this behalf. Thereafter, it is observed that the exemption in Cl. (1) of Art. 289 is subject to Cl. (2) of Art. 289. Clause (2) is analysed and interpreted as clarifying Cl. (1) to the extent that the exemption upon the income of Provincial Government operates only when such income is carried on for the purpose of governmental functions and not for trade and business activities, carried on with the profit motive. It is stated that though trade and business ordinarily has a very wide and ambiguous meaning (certain English and Indian authorities are cited to illustrate this point), but, for the purposes of Cl. (2) of Art. 289, they have to be given a restricted meaning. It is, therefore, stated that under Art. 289(2), the trading and business activities of State Governments, which are carried on with the profit motive, will be liable to tax and cannot avail of the exemptions in Art. 289(1).106. Clause (2) is further analysed and is interpreted as having been included for the purpose of removing the trading and business activities of State Governments from the purview of the exemption in Cl. (1). However, it is stated, such a removal is not automatic and is dependent upon the enactment of a Parliamentary Law which imposes taxes on specified trading and business activities of State Governments.107. Thereafter, the question whether Parliament has, in exercise of powers under Art. 289(2), imposed taxes on the trading and business activities of State Governments, is sought to be addressed. In this respect, the Act, the New Delhi Municipal Committee Act and the Delhi Municipal Corporation Act, which are deemed to be post-constitutional enactments, are examined. It is noted that while these enactments contain specific exemptions in favour of properties of the Union and also exempt properties used for charitable purposes and public worship, they do not exempt properties of State Governments. It is stated that the latter omission must be deemed to be deliberate. Thereafter, it is stated that two views are possible in this regard. The first is to adopt the position that since neither of these enactments are purported to have been made under Art. 289(1), they should not be treated as having been enacted for that purpose and, consequently, should be held to be incapable of levying taxes on any property, whether occupied for governmental or trading purposes, of the State Governments. The second view, which Reddy, J. adopts, is to take the position that the Doctrine of Presumption of Constitutionality of Legislations points in favour of holding that the Act and the Delhi Municipal Corporation Act are laws made by Parliament under Art. 289(2), and taxes imposed by them upon the properties occupied for trading and business activities by State Governments would be valid and effective. A number of decisions of this Court are cited to show the jurisprudential basis of this tool of constitutional interpretation. It is pointed out that though neither of these legislations purport to have been made under Art. 289(2), but, since this is normal practice in that no legislation specifies the provision of the Constitution that it is enacted under, this fact need not be over emphasised. It is, therefore, held that the levy of property taxes by these enactments is valid to the extent that it relates to lands and buildings owned by State Governments and used by them for trade and business purposes. (In an earlier part of the opinion, the difficulty in drawing a distinction between governmental and business functions is noted and an example in respect of guest-houses maintained by State Governments is supplied). Thereafter, it is stated that it is for the appropriate assessing authority to determine which land/building falls within which category in accordance with law and take appropriate further action. It is then stated that since, under these enactments, the assessing authorities are required to decide several difficult questions as to what amounts to charitable purpose etc., the obligation imposed by such directions would not prove to be too onerous to discharge. Reddy, J. sums up the issue by recommending to the Union that it consider granting a total exemption in favour of all properties of State Governments.108. We are of the opinion that of the two possible views expressed by Reddy, J., it is the first which ought to be preferred. We think that the second view is fraught with several difficulties. Such a construction, while being violative of the scheme envisaged by the Framers of the Constitution, may well result in a situation that was sought to be avoided by them. The directions may also lead to grave practical difficulties; moreover, since the effect of the directions would be to vest the executive authorities with substantial policy making powers, their issuance might well be offensive to established principles of delegation of powers.117. It is, therefore, clear that Cl. (2) of Art. 289 was a well considered compromise which was arrived at after balancing the demands of those who sought complete exemption of commercial activities of State Governments from Union Taxation and those who were in favour of levying such Union Taxes. The Framers desired that the issue whether the trading and business activities of State Governments should be subject to Union Taxation, be left to the wisdom of Parliament. As is evident from the reference to New York v. United States (1946 (326) US 572) (supra) in the extracted portion, the Framers were conscious of the difficulty in drawing a line between the governmental and commercial functions of State Governments and they hoped that Parliament would take into account a host of relevant factors before enacting a law which would specify the trading activities of State Governments making them liable to Union Taxation. It is important to note that the Framers did not expressly confer upon the Union the power to tax commercial activities of State Governments. The exercise of such a power is made conditional upon the enactment of a special, duly considered, legislation. It is also important to note that Cl. (2) of Art. 289 has made a departure from the proviso to S. 155(1). Under the present scheme, the power to tax is not automatic and the responsibility of specifying the trading and business activities of State Governments which would be liable to Union Taxation is expressly vested in Parliament.118. Neither the Act, which is a 1911 enactment, nor the Delhi Municipal Corporation Act, can qualify as laws under Art. 289. They do not specify which of the trading activities of State Governments are liable to taxation; indeed, by their very nature, they cannot purport to do so. It must be remembered that the Act and the Delhi Municipal Corporation Act are not Parliamentary laws in the sense envisaged by Art. 289(2). Though the Act is sought to be construed as a post-constitutional, parliamentary enactment, the fact remains that it is a pre-constitutional, colonial legislation. As for the Delhi Municipal Corporation Act, it is, in essence, an ordinary Municipal legislation. What makes it special is the fact, occasioned in its case by geographical and historical factors, that it was enacted by Parliament instead of by a State Legislature. It this regard, we may recall the submissions of the learned Attorney General in respect of how Parliament discharges its obligation towards enacting laws for Union Territories.119. It is, therefore, clear that it would be quite dangerous to assume that when Parliament enacted the Delhi Municipal Corporation Act, it had intended that the enactment should secure the purpose enshrined in Art. 289(2). If any safe assumption is to be drawn, it is this : in all probability, while enacting the Delhi Municipal Corporation Act, Parliament must have transplanted a municipal legislation existing in a certain State, made the necessary changes and completed the procedural formalities. That would explain why the Delhi Municipal Corporation Act (as also the New Delhi Municipal Committee Act) contains an exemption on the lines of the one prescribed by Art. 285 - this is a typical feature of ordinary Municipal legislations, which are enacted by State Legislatures who are conscious of the mandate of Art. 285. Moreover, such legislations do not contain exemptions in favour of properties of State Governments because, within the territory of a State, the properties of other State Governments are liable to taxation. So, when such a legislation is transplanted almost verbatim into a Union Territory, it will obviously not contain an exemption in favour of properties of State Governments. In the face of the actual conditions which govern the enactment of laws for Union Territories by Parliament, (these conditions have been statutorily provided; moreover this Court has already taken notice of them) it is difficult to assume that the omission of an exemption in the Delhi Municipal Corporation Act in favour of State Governments, is deliberate. The Act and the Delhi Municipal Corporation Act cannot, therefore, be said to meet the special requirements which have been expressed by the Framers to be necessary for complying with the spirit of Art. 289(2).120. Reddy, J. has taken the view that the Doctrine of Presumption of Constitutionality of Legislations requires the saving of the taxes which these Acts impose upon the commercial activities of State Governments. The Act is a pre-constitutional enactment. The basis of this doctrine is the assumed intention of the Legislators not to transgress constitutional boundaries. It is difficult to appreciate how that intention can be assumed when, at the time that the law was passed, there was no such barrier and the limitation was brought in by a Constitution long after the enactment of the law. (This Court has in a Constitution Bench decision, Gulabhai v. Union of India, AIR 1967 SC 1110 , raised doubts along similar lines).121. The Doctrine of Presumption of Constitutionality of Legislations is not one of infinite application; it has recognised limitations. It is settled law that if any interpretation is possible which will save an Act from the attack of unconstitutionality, that interpretation should always be accepted in preference to an alternative interpretation that might also be possible, under which the statute would be void. However, this Court has consistently followed a policy of not putting an unnatural and forced meaning on the words that have been used by the Legislature in the search for an interpretation which would save the statutory provisions. We are not free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory In Re the Central Provinces and Berar Act No. XIV of 1938, (1939) FCR 18 at p. 37 : (AIR 1939 FC 1 at p. 4); also see : Diamond Sugar Mills Ltd. v. State of U.P., 1961(3) SCR 242.122. The Act and the Delhi Municipal Corporation Act are ordinary Municipal Legislations. They do not, and cannot, purport to be laws made by Parliament under Art. 289(2). There is no reason why such a strained reasoning should be employed to save some of the taxes that may be capable of being imposed on certain properties of State Governments. There seems to be no pressing reason for invoking the doctrine. Reddy, J. has, in the earlier part of his opinion, held that a large number of properties of State Governments would be exempt from taxes leviable under these Acts due to the operation of Art. 289(1). To employ such reasoning to construe Art. 289(2) in a bid to save what would only be a reduced amount, does not seem justified.123. The practical effect of the directions recommended by Reddy, J. is also worth noticing. It is abundantly clear that the task of determining which of the activities of Governments are governmental and which are commercial, is an extremely difficult one. Reddy, J. entrusts this assignment to the assessing authorities under the Acts who can only be Municipal authorities. This is an issue which has confounded Courts in the U.S. and in Australia for several years. This issue was considered to be so troublesome by the Framers that they entrusted it to Parliament in the hope that it would fully deliberate the matter before enacting a comprehensive legislation.124. In the In Re : The Delhi Laws Act case, AIR 1951 SC 332 this Court authoritatively held that the legislature cannot delegate its essential policy-making function. Over the years, this Court has elaborated this proposition to hold that the legislature can delegate some of its legislative functions provided it lays down the policy in clear terms. The legislature is required to declare the policy of law in unambiguous terms, lay down elaborate legal principles and provide illuminating standards for the guidance of the delegate. Even though this Court has, on occasions, sanctioned very broad delegations of taxing power to Municipal Bodies, to delegate the task of carving out the distinction between governmental and business functions of State Governments to Municipal authorities would clearly be against the interdiction in the Delhi Laws Act case as the assignment requires not only the making of policy, but indeed, the making of very difficult and challenging policy choices. Reddy, J. has noted that the Delhi Municipal Corporation Act provides exemptions in favour of activities that are capable of being classified as charitable purpose, public worship etc. and states that to ascertain the ambit of these categories is an equally difficult task which is already being discharged by the assessing authorities. However, the point that needs to be emphasised, is that S. 115 of the Delhi Municipal Corporation Act defines these terms and provides guidelines in respect thereof. However, there is no provision in the Delhi Municipal Corporation Act which states that the trading and business operations of State Governments would be subject to property taxes. The Act is equally silent on this aspect. Consequently, no guidelines in this behalf are to be found within the parameters of these legislations. Under these circumstances, in the complete absence of any statutory policy or any guidelines for the delegation of such a policy, we believe that it would be impermissible and hazardous to directly assign such a function, nay power, to executive Municipal authorities.125. The decision whether the properties of State Governments occupied for commercial purposes should be subject to the levy of Union Taxes is one that is required by Art. 289(2) to be made by a legislation which specifies the activities which would be liable to tax. This decision cannot be entrusted to Municipal functionaries. For these reasons, we find ourselves unable to agree with Reddy, J. in his finding that the properties of State Governments occupied by them for trade or business purposes are subject to the levy of taxes under the Act and the Delhi Municipal Corporation Act.63. The same issue was thereafter considered by a Constitution Bench in S.K. Singh v. V.V. Giri, 1971(2) SCR 197, wherein Bhargava, J., while delivering an opinion concurring with the majority, reached the conclusion that the definition in S. 3(58) of the General Clauses Act would not apply to matters involving interpretation of the Constitution. The case, which involved a challenge to the election of Shri V. V. Giri as the President of India, required the Court to consider the issue in the context of Art. 54 which provides that the electoral college for the President consists of the elected members of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of State in S. 3(58) of the General Clauses Act. it was argued that Union Territories are also States and, consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the electoral college; their omission was said to be a material irregularity which would vitiate the election. Responding to this contention, the learned Judge held as follows (at pp. 313-314) (of SCR) : (at p. 2138 of AIR) :Article 54, no doubt, lays down that all elected members of the legislative assemblies of the States are to be included in the electoral college; but the word States used in this Article cannot include Union Territories. It is true that, under Art. 367, the General Clauses Act applies for interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India; but that Act has been applied as it stood on 26th January, 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Art. 372. The General Clauses Act, as it was in 1950 and as adapted or modified under Art. 372, did not define State so as to include a Union Territory. The Constitution was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Art. 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956. It was in exercise of this power under Art. 372A that S. 3(58) of the General Clauses Act was amended, so that, thereafter, State as defined included Union Territories also. The new definition of State in S. 3(58) of the General Clauses Act as a result of modifications and adaptations under Art. 372A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Art. 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Art. 372, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956, S. 3(58) of the General Clauses Act did not define State as including Union Territories for purposes of interpretation of Art. 54, the Union Territories cannot be treated as included in the word State.85. The word taxation has been defined in Art. 366(28) which states that unless the context otherwise requires, the word taxation includes the imposition of any tax or impost, whether general or local or special and, tax shall be construed accordingly. This definition was accepted by Das, J. and Hidayatullah, J. in their minority opinions (at pp. 834-35 and 893-94 (of SCR) : (at pp. 1780 and 1799) of AIR) respectively) in the Sea Customs case (1964 (3) SCR 787 : AIR 1963 SC 1760 ) for interpreting Art. 289(1). However, Sinha, C.J., in his majority opinion (at pp. 923-34 (sic)), rejected the application of this definition to Art. 289(1) as, in his opinion, the context of Art. 289(1) precluded the application of the definition. Rajagopala Ayyangar, J., in his separate majority opinion (at pp. 921-93 (sic)), also felt that the definition would not apply. We concur with the majority view in the Sea Customs case that the definition of taxation provided in Art. 366(28) will not apply for the purpose of interpreting Art. 289(1). | 0 | 28,347 | 12,313 | ### Instruction:
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an Act from the attack of unconstitutionality, that interpretation should always be accepted in preference to an alternative interpretation that might also be possible, under which the statute would be void. However, this Court has consistently followed a policy of not putting an unnatural and forced meaning on the words that have been used by the Legislature in the search for an interpretation which would save the statutory provisions. We are not free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory In Re the Central Provinces and Berar Act No. XIV of 1938, (1939) FCR 18 at p. 37 : (AIR 1939 FC 1 at p. 4); also see : Diamond Sugar Mills Ltd. v. State of U.P., 1961(3) SCR 242. 122. The Act and the Delhi Municipal Corporation Act are ordinary Municipal Legislations. They do not, and cannot, purport to be laws made by Parliament under Art. 289(2). There is no reason why such a strained reasoning should be employed to save some of the taxes that may be capable of being imposed on certain properties of State Governments. There seems to be no pressing reason for invoking the doctrine. Reddy, J. has, in the earlier part of his opinion, held that a large number of properties of State Governments would be exempt from taxes leviable under these Acts due to the operation of Art. 289(1). To employ such reasoning to construe Art. 289(2) in a bid to save what would only be a reduced amount, does not seem justified. 123. The practical effect of the directions recommended by Reddy, J. is also worth noticing. It is abundantly clear that the task of determining which of the activities of Governments are governmental and which are commercial, is an extremely difficult one. Reddy, J. entrusts this assignment to the assessing authorities under the Acts who can only be Municipal authorities. This is an issue which has confounded Courts in the U.S. and in Australia for several years. This issue was considered to be so troublesome by the Framers that they entrusted it to Parliament in the hope that it would fully deliberate the matter before enacting a comprehensive legislation. 124. In the In Re : The Delhi Laws Act case, AIR 1951 SC 332 this Court authoritatively held that the legislature cannot delegate its essential policy-making function. Over the years, this Court has elaborated this proposition to hold that the legislature can delegate some of its legislative functions provided it lays down the policy in clear terms. The legislature is required to declare the policy of law in unambiguous terms, lay down elaborate legal principles and provide illuminating standards for the guidance of the delegate. Even though this Court has, on occasions, sanctioned very broad delegations of taxing power to Municipal Bodies, to delegate the task of carving out the distinction between governmental and business functions of State Governments to Municipal authorities would clearly be against the interdiction in the Delhi Laws Act case as the assignment requires not only the making of policy, but indeed, the making of very difficult and challenging policy choices. Reddy, J. has noted that the Delhi Municipal Corporation Act provides exemptions in favour of activities that are capable of being classified as charitable purpose, public worship etc. and states that to ascertain the ambit of these categories is an equally difficult task which is already being discharged by the assessing authorities. However, the point that needs to be emphasised, is that S. 115 of the Delhi Municipal Corporation Act defines these terms and provides guidelines in respect thereof. However, there is no provision in the Delhi Municipal Corporation Act which states that the trading and business operations of State Governments would be subject to property taxes. The Act is equally silent on this aspect. Consequently, no guidelines in this behalf are to be found within the parameters of these legislations. Under these circumstances, in the complete absence of any statutory policy or any guidelines for the delegation of such a policy, we believe that it would be impermissible and hazardous to directly assign such a function, nay power, to executive Municipal authorities. 125. The decision whether the properties of State Governments occupied for commercial purposes should be subject to the levy of Union Taxes is one that is required by Art. 289(2) to be made by a legislation which specifies the activities which would be liable to tax. This decision cannot be entrusted to Municipal functionaries. For these reasons, we find ourselves unable to agree with Reddy, J. in his finding that the properties of State Governments occupied by them for trade or business purposes are subject to the levy of taxes under the Act and the Delhi Municipal Corporation Act. We may now summarise our conclusions : i) The central issue in the present matter, namely, whether the properties owned by the States which are situated within Union Territories are exempt from paying property taxes, was specifically answered in the affirmative in the Sea Customs case (AIR 1963 SC 1760 ); the observations in this regard are part of the ratio decidendi of the case and having been reaffirmed by a Constitution Bench which was hearing a litigation inter partes in the APSRTC case (AIR 1964 SC 1486 ), they constitute good law; ii) The definition of State provided in S. 3(58) of the General Clauses Act, which declares that the word `State would include `Union Territory, is inapplicable to Art. 246(4); iii) The term Union Taxation used in Art. 289(1) will ordinarily mean all taxes leviable by the Union and it includes within its ambit taxes on property levied within Union Territories; therefore, the States can avail of the exemption provided in Art. 289(1) in respect of their properties situated within Union Territories; iv) Property taxes levied by Municipalities within Union Territories are properly within the ambit of the exemption provided in Art. 289(1) and the States can avail of the exemption.
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as the assignment requires not only the making of policy, but indeed, the making of very difficult and challenging policy choices. Reddy, J. has noted that the Delhi Municipal Corporation Act provides exemptions in favour of activities that are capable of being classified as charitable purpose, public worship etc. and states that to ascertain the ambit of these categories is an equally difficult task which is already being discharged by the assessing authorities. However, the point that needs to be emphasised, is that S. 115 of the Delhi Municipal Corporation Act defines these terms and provides guidelines in respect thereof. However, there is no provision in the Delhi Municipal Corporation Act which states that the trading and business operations of State Governments would be subject to property taxes. The Act is equally silent on this aspect. Consequently, no guidelines in this behalf are to be found within the parameters of these legislations. Under these circumstances, in the complete absence of any statutory policy or any guidelines for the delegation of such a policy, we believe that it would be impermissible and hazardous to directly assign such a function, nay power, to executive Municipal authorities.125. The decision whether the properties of State Governments occupied for commercial purposes should be subject to the levy of Union Taxes is one that is required by Art. 289(2) to be made by a legislation which specifies the activities which would be liable to tax. This decision cannot be entrusted to Municipal functionaries. For these reasons, we find ourselves unable to agree with Reddy, J. in his finding that the properties of State Governments occupied by them for trade or business purposes are subject to the levy of taxes under the Act and the Delhi Municipal Corporation Act.63. The same issue was thereafter considered by a Constitution Bench in S.K. Singh v. V.V. Giri, 1971(2) SCR 197, wherein Bhargava, J., while delivering an opinion concurring with the majority, reached the conclusion that the definition in S. 3(58) of the General Clauses Act would not apply to matters involving interpretation of the Constitution. The case, which involved a challenge to the election of Shri V. V. Giri as the President of India, required the Court to consider the issue in the context of Art. 54 which provides that the electoral college for the President consists of the elected members of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of State in S. 3(58) of the General Clauses Act. it was argued that Union Territories are also States and, consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the electoral college; their omission was said to be a material irregularity which would vitiate the election. Responding to this contention, the learned Judge held as follows (at pp. 313-314) (of SCR) : (at p. 2138 of AIR) :Article 54, no doubt, lays down that all elected members of the legislative assemblies of the States are to be included in the electoral college; but the word States used in this Article cannot include Union Territories. It is true that, under Art. 367, the General Clauses Act applies for interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India; but that Act has been applied as it stood on 26th January, 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Art. 372. The General Clauses Act, as it was in 1950 and as adapted or modified under Art. 372, did not define State so as to include a Union Territory. The Constitution was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Art. 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956. It was in exercise of this power under Art. 372A that S. 3(58) of the General Clauses Act was amended, so that, thereafter, State as defined included Union Territories also. The new definition of State in S. 3(58) of the General Clauses Act as a result of modifications and adaptations under Art. 372A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Art. 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Art. 372, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956, S. 3(58) of the General Clauses Act did not define State as including Union Territories for purposes of interpretation of Art. 54, the Union Territories cannot be treated as included in the word State.85. The word taxation has been defined in Art. 366(28) which states that unless the context otherwise requires, the word taxation includes the imposition of any tax or impost, whether general or local or special and, tax shall be construed accordingly. This definition was accepted by Das, J. and Hidayatullah, J. in their minority opinions (at pp. 834-35 and 893-94 (of SCR) : (at pp. 1780 and 1799) of AIR) respectively) in the Sea Customs case (1964 (3) SCR 787 : AIR 1963 SC 1760 ) for interpreting Art. 289(1). However, Sinha, C.J., in his majority opinion (at pp. 923-34 (sic)), rejected the application of this definition to Art. 289(1) as, in his opinion, the context of Art. 289(1) precluded the application of the definition. Rajagopala Ayyangar, J., in his separate majority opinion (at pp. 921-93 (sic)), also felt that the definition would not apply. We concur with the majority view in the Sea Customs case that the definition of taxation provided in Art. 366(28) will not apply for the purpose of interpreting Art. 289(1).
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S. Chinna Narasa Reddy Vs. D. Jagadeeswara Rao & Others | Loyola Public School, distance of about 7 miles. Thirty-eight persons applied for the routes in question. After eliminating some of the applicants as being disqualified the R.T.A. considered the case of others. He granted one route to the fourth respondent and another to the first respondent in this appeal. Aggrieved by that order the appellant and another appealed to the Appellate Authority. The Appellate Authority sustained the grant made in favour of the fourth respondent but set aside grant in favour of the first respondent and granted that route to the appellant. As against that order the first respondent went up in revision to the Government. The Government reversed the order of the Appellate Authority and restored that of the R.T.A. The appellant challenged that order by means of a writ petition under Article 226 of the Constitution before the High Court of Andhra Pradesh. The writ petition came up for hearing before a single judge. The learned single Judge allowed the petition and quashed the order of the Government. As against the order of the learned single Judge an appeal was taken to the Letters Patent Bench. The Appellate Bench reversed the order of the learned single Judge and restored that of the Government. Thereafter this appeal has been brought.2. The Appellate Authority came to the conclusion that both the appellant as well as the first respondent have equal qualifications as regards residence and business experience. But it preferred the appellant on the ground that he is a "new entrant" to the field of stage carriage business. It was not contested before the Appellate Authority that the appellant was not "a new entrant" within the meaning of the word in Rule 212(1)(ii)(a) of the Andhra Pradesh Motor Vehicles Rules. The Government also proceeded on the basis that the appellant is a "new entrant" within the meaning of that rule. But yet it preferred the first respondent on the ground that he had sector qualifications etc.3. The learned single Judge came to the conclusion that the qualifications of the appellant as well as the first respondent as regards residence as well as business experience are similar and therefore the Appellate Authority had rightly granted to them 5 marks each but he quashed the order of the Government on the ground that the Government failed to give the appellant the benefit of the rule mentioned earlier. In his opinion, the technical knowledge, business experience as well as sector qualification referred to by the Government had been taken into consideration by the R.T.A. as well as the Appellate Authority in awarding marks to the appellant as well as the respondent. That being so, the same qualifications could not be taken into consideration over again.4. Before the Appellate Bench the only point canvassed was to the meaning of the words "a new entrant" in Rule 212(1) (ii)(a) referred to earlier. The other points considered by the Government were evidently not put in issue. The Appellate Bench came to the conclusion that the words "a new entrant" in the rule in question mean new entrant to the motor transport field. On that basis it came to the conclusion that the appellant is not a "new entrant".5. In our opinion, the Appellate Bench erred in coming to the conclusion that the expression "a new entrant" in the rule in question means new entrant to the motor transport field. The marginal note to Rule 2(1)(ii) says : "Grant, variation, suspension or cancellation of stage carriage permit guiding principles". This note indicates that the rule-making authority was only considering the grant of stage carriage permits. Sub-clause (a) of clause (ii) of Rule 212 (1) does not refer to motor transport business. When it comes to business or technical experience the rule specifically speaks of business or technical experience in motor transport. But when it speaks of "a new entrant", it does not refer to motor transport business. From the context it is clear that the rule-making authority intended that a new entrant to the stage carriage business must have a preference over the existing operators in respect of short routes. The fact that the appellant had a public carrier permit was wholly irrelevant. He is undoubtedly a new entrant to the stage carriage business.6. In our opinion the policy behind Rule 212 is that in the matter of short routes preference should be given to new entrants so that more persons may have employment and there may be better competition. But when it comes to routes of longer distance the rule provides for viable units. If we consider the policy behind Rule 212 it becomes obvious that the rule-making authority had in view new entrants to stage carriage business. Further, in our opinion the language of the rule, if considered in the context in which it is used, clearly indicates that the new entrants referred therein are new entrants to the stage carriage business.7. Mr. Natesan, learned for the first respondent, contended that if we read the rule regarding new entrants as well as the rule relating to business or technical experience together then it would be clear that "new entrant" referred to in Rule 212(1)(ii)(a) is a new entrant to the motor transport business. We are unable to accept that contention as correct. If Mr. Natesans contention is correct then even an operator of a scooter rickshaw would be deprived of the benefit of the rule. This could never have been the intention of the rule-making authority.8. Mr. Ram Reddy appearing for the Government contended that the Governments order cannot be assailed even if we come to the conclusion that the rule regarding new entrants applies only to new entrants to stage carriage business because the Government based its order on other grounds, namely, financial stability of the operators, their technical knowledge and other qualifications. We are unable to entertain this contention because this contention does not appear to have been canvassed before the Appellate Bench. Hence, we see no justification for going into that contention. | 1[ds]5. In our opinion, the Appellate Bench erred in coming to the conclusion that the expression "a new entrant" in the rule in question means new entrant to the motor transport field. The marginal note to Rule 2(1)(ii) says : "Grant, variation, suspension or cancellation of stage carriage permit guiding principles". This note indicates that theauthority was only considering the grant of stage carriage permits.(a) of clause (ii) of Rule 212 (1) does not refer to motor transport business. When it comes to business or technical experience the rule specifically speaks of business or technical experience in motor transport. But when it speaks of "a new entrant", it does not refer to motor transport business. From the context it is clear that theauthority intended that a new entrant to the stage carriage business must have a preference over the existing operators in respect of short routes. The fact that the appellant had a public carrier permit was wholly irrelevant. He is undoubtedly a new entrant to the stage carriage business.6. In our opinion the policy behind Rule 212 is that in the matter of short routes preference should be given to new entrants so that more persons may have employment and there may be better competition. But when it comes to routes of longer distance the rule provides for viable units. If we consider the policy behind Rule 212 it becomes obvious that theauthority had in view new entrants to stage carriage business. Further, in our opinion the language of the rule, if considered in the context in which it is used, clearly indicates that the new entrants referred therein are new entrants to the stage carriageare unable to accept that contention as correct. If Mr. Natesans contention is correct then even an operator of a scooter rickshaw would be deprived of the benefit of the rule. This could never have been the intention of theauthority.8. Mr. Ram Reddy appearing for the Government contended that the Governments order cannot be assailed even if we come to the conclusion that the rule regarding new entrants applies only to new entrants to stage carriage business because the Government based its order on other grounds, namely, financial stability of the operators, their technical knowledge and other qualifications. We are unable to entertain this contention because this contention does not appear to have been canvassed before the Appellate Bench. Hence, we see no justification for going into that contention. | 1 | 1,144 | 459 | ### 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:
Loyola Public School, distance of about 7 miles. Thirty-eight persons applied for the routes in question. After eliminating some of the applicants as being disqualified the R.T.A. considered the case of others. He granted one route to the fourth respondent and another to the first respondent in this appeal. Aggrieved by that order the appellant and another appealed to the Appellate Authority. The Appellate Authority sustained the grant made in favour of the fourth respondent but set aside grant in favour of the first respondent and granted that route to the appellant. As against that order the first respondent went up in revision to the Government. The Government reversed the order of the Appellate Authority and restored that of the R.T.A. The appellant challenged that order by means of a writ petition under Article 226 of the Constitution before the High Court of Andhra Pradesh. The writ petition came up for hearing before a single judge. The learned single Judge allowed the petition and quashed the order of the Government. As against the order of the learned single Judge an appeal was taken to the Letters Patent Bench. The Appellate Bench reversed the order of the learned single Judge and restored that of the Government. Thereafter this appeal has been brought.2. The Appellate Authority came to the conclusion that both the appellant as well as the first respondent have equal qualifications as regards residence and business experience. But it preferred the appellant on the ground that he is a "new entrant" to the field of stage carriage business. It was not contested before the Appellate Authority that the appellant was not "a new entrant" within the meaning of the word in Rule 212(1)(ii)(a) of the Andhra Pradesh Motor Vehicles Rules. The Government also proceeded on the basis that the appellant is a "new entrant" within the meaning of that rule. But yet it preferred the first respondent on the ground that he had sector qualifications etc.3. The learned single Judge came to the conclusion that the qualifications of the appellant as well as the first respondent as regards residence as well as business experience are similar and therefore the Appellate Authority had rightly granted to them 5 marks each but he quashed the order of the Government on the ground that the Government failed to give the appellant the benefit of the rule mentioned earlier. In his opinion, the technical knowledge, business experience as well as sector qualification referred to by the Government had been taken into consideration by the R.T.A. as well as the Appellate Authority in awarding marks to the appellant as well as the respondent. That being so, the same qualifications could not be taken into consideration over again.4. Before the Appellate Bench the only point canvassed was to the meaning of the words "a new entrant" in Rule 212(1) (ii)(a) referred to earlier. The other points considered by the Government were evidently not put in issue. The Appellate Bench came to the conclusion that the words "a new entrant" in the rule in question mean new entrant to the motor transport field. On that basis it came to the conclusion that the appellant is not a "new entrant".5. In our opinion, the Appellate Bench erred in coming to the conclusion that the expression "a new entrant" in the rule in question means new entrant to the motor transport field. The marginal note to Rule 2(1)(ii) says : "Grant, variation, suspension or cancellation of stage carriage permit guiding principles". This note indicates that the rule-making authority was only considering the grant of stage carriage permits. Sub-clause (a) of clause (ii) of Rule 212 (1) does not refer to motor transport business. When it comes to business or technical experience the rule specifically speaks of business or technical experience in motor transport. But when it speaks of "a new entrant", it does not refer to motor transport business. From the context it is clear that the rule-making authority intended that a new entrant to the stage carriage business must have a preference over the existing operators in respect of short routes. The fact that the appellant had a public carrier permit was wholly irrelevant. He is undoubtedly a new entrant to the stage carriage business.6. In our opinion the policy behind Rule 212 is that in the matter of short routes preference should be given to new entrants so that more persons may have employment and there may be better competition. But when it comes to routes of longer distance the rule provides for viable units. If we consider the policy behind Rule 212 it becomes obvious that the rule-making authority had in view new entrants to stage carriage business. Further, in our opinion the language of the rule, if considered in the context in which it is used, clearly indicates that the new entrants referred therein are new entrants to the stage carriage business.7. Mr. Natesan, learned for the first respondent, contended that if we read the rule regarding new entrants as well as the rule relating to business or technical experience together then it would be clear that "new entrant" referred to in Rule 212(1)(ii)(a) is a new entrant to the motor transport business. We are unable to accept that contention as correct. If Mr. Natesans contention is correct then even an operator of a scooter rickshaw would be deprived of the benefit of the rule. This could never have been the intention of the rule-making authority.8. Mr. Ram Reddy appearing for the Government contended that the Governments order cannot be assailed even if we come to the conclusion that the rule regarding new entrants applies only to new entrants to stage carriage business because the Government based its order on other grounds, namely, financial stability of the operators, their technical knowledge and other qualifications. We are unable to entertain this contention because this contention does not appear to have been canvassed before the Appellate Bench. Hence, we see no justification for going into that contention.
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5. In our opinion, the Appellate Bench erred in coming to the conclusion that the expression "a new entrant" in the rule in question means new entrant to the motor transport field. The marginal note to Rule 2(1)(ii) says : "Grant, variation, suspension or cancellation of stage carriage permit guiding principles". This note indicates that theauthority was only considering the grant of stage carriage permits.(a) of clause (ii) of Rule 212 (1) does not refer to motor transport business. When it comes to business or technical experience the rule specifically speaks of business or technical experience in motor transport. But when it speaks of "a new entrant", it does not refer to motor transport business. From the context it is clear that theauthority intended that a new entrant to the stage carriage business must have a preference over the existing operators in respect of short routes. The fact that the appellant had a public carrier permit was wholly irrelevant. He is undoubtedly a new entrant to the stage carriage business.6. In our opinion the policy behind Rule 212 is that in the matter of short routes preference should be given to new entrants so that more persons may have employment and there may be better competition. But when it comes to routes of longer distance the rule provides for viable units. If we consider the policy behind Rule 212 it becomes obvious that theauthority had in view new entrants to stage carriage business. Further, in our opinion the language of the rule, if considered in the context in which it is used, clearly indicates that the new entrants referred therein are new entrants to the stage carriageare unable to accept that contention as correct. If Mr. Natesans contention is correct then even an operator of a scooter rickshaw would be deprived of the benefit of the rule. This could never have been the intention of theauthority.8. Mr. Ram Reddy appearing for the Government contended that the Governments order cannot be assailed even if we come to the conclusion that the rule regarding new entrants applies only to new entrants to stage carriage business because the Government based its order on other grounds, namely, financial stability of the operators, their technical knowledge and other qualifications. We are unable to entertain this contention because this contention does not appear to have been canvassed before the Appellate Bench. Hence, we see no justification for going into that contention.
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Union of India Vs. H.R. Patankar and Others | first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958, respondent Nos. 3 to 9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent and respondent Nos. 3 to 9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior to respondent Nos. 3 to 9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.The question than arises as to what principle must be followed determining inter s e seniority between respondent Nos. 3 to 9. Now admittedly the same year of allotment was assigned to the first respondent as also respondent Nos. 3 to 9 and between them, the first respondent was appointed to the Indian Administrative Service earlier than respondent Nos. 3 to 9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle if respondent Nos. 3 to 9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority over respondent Nos. 3 to 9. How then, can respondent Nos. 3 to 9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority over respondent Nos. 3 to 9 in the gradation list.5 | 0[ds]This new sub-rule (3) was on its plain terms prospective in operation and it governed the inter se seniority of only those officers appointed to the Indian Administrative Service on or after 11th April 1958 and did not apply for determining inter se seniority where one of the competing officers were appointed prior to 11th April 1958. This was clear enough on a plain grammatical construction of the new sub-rule (3) but the Government of India thought that its intention should not be left in any doubt whatsoever and therefore on 13th August 1958 the Government of India again amended Rule 4 by substituting sub-rule (3) . The new sub-rule (3) introduced by this amendment substantial reproduced the original sub-rule (3) for determining inter se seniority of officers appointed before 11th April 1958 and so far as the determination of inter se seniority of officers appointed on or after 11th April 1958 was concerned, the amendment inserted a new sub- rule(4) after sub rule (3) which substantially laid down the same provisions as the sub-rule (3) introduced by the amendment of 11th April 1958. Obviously, the object of making this amendment on 13th August 1958 was to clarify that the principle of seniority laid down in the original sub-rule (3) would continue to apply for determining inter se seniority of officers appointed prior to 11th April 1958 and the inter se seniority of officers appointed on or after 11th April 1958 would be governed by the principle of seniority laid down in sub-rule (3) introduced by the amendment of 11th April 1951.Now it is obvious that neither the original sub-rule (3) nor the new sub-rule (3) introduced by the amendment of 13th August 1958 can apply in the present case for determining inter se seniority of first respondent andrespondent Nos. 3 to9, because though the first respondent andrespondent Nos. 3 to9 all have the same year of allotment and the first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958,respondent Nos. 3 to9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent andrespondent Nos. 3 to9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior torespondent Nos. 3 to9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.Thequestion than arises as to what principle must be followed determining inter s e seniority betweenrespondent Nos. 3 to9. Now admittedly the same year of allotment was assigned to the first respondent as alsorespondent Nos. 3 to9 and between them, the first respondent was appointed to the Indian Administrative Service earlier thanrespondent Nos. 3 to9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle ifrespondent Nos. 3 to9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority overrespondent Nos. 3 to9. How then, canrespondent Nos. 3 to9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority overrespondent Nos. 3 to9 in the gradation list. | 0 | 3,134 | 1,391 | ### 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:
first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958, respondent Nos. 3 to 9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent and respondent Nos. 3 to 9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior to respondent Nos. 3 to 9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.The question than arises as to what principle must be followed determining inter s e seniority between respondent Nos. 3 to 9. Now admittedly the same year of allotment was assigned to the first respondent as also respondent Nos. 3 to 9 and between them, the first respondent was appointed to the Indian Administrative Service earlier than respondent Nos. 3 to 9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle if respondent Nos. 3 to 9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority over respondent Nos. 3 to 9. How then, can respondent Nos. 3 to 9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority over respondent Nos. 3 to 9 in the gradation list.5
### Response:
0
### Explanation:
Nos. 3 to9, because though the first respondent andrespondent Nos. 3 to9 all have the same year of allotment and the first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958,respondent Nos. 3 to9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent andrespondent Nos. 3 to9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior torespondent Nos. 3 to9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.Thequestion than arises as to what principle must be followed determining inter s e seniority betweenrespondent Nos. 3 to9. Now admittedly the same year of allotment was assigned to the first respondent as alsorespondent Nos. 3 to9 and between them, the first respondent was appointed to the Indian Administrative Service earlier thanrespondent Nos. 3 to9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle ifrespondent Nos. 3 to9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority overrespondent Nos. 3 to9. How then, canrespondent Nos. 3 to9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority overrespondent Nos. 3 to9 in the gradation list.
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National Aviation Co.Of India Ltd Vs. S.M.K.Khan | service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason." The said decision will not assist the respondent. The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55 years. 9. The learned counsel for the respondent next submitted that recourse to `compulsory retirement should be only in `public interest; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.10. The respondent next drew our attention to the finding of the High Court that there was some discrepancy in regard to the number of days of unauthorized absence during the period of one year after 55 years and such unauthorized absence could not be a ground for compulsory retirement without an enquiry. It is true that the High Court has referred to the evidence of MW-1 and the entries in the muster rolls, to point out the discrepancy. MW1 had stated before the tribunal the period of unauthorized absence was 27 days whereas the entries in the muster rolls showed such absence was 32 days and that there was also an admission that out of the said 32 days, 6 days was availed as sick leave. But that cannot be a ground to conclude that the order of compulsory retirement was bad. The Tribunal and the High Court were not examining `unauthorized absence as a misconduct which was subject matter of a charge. When the show cause notice dated 27.5.1999 referred to the absence for 20 days during the period of one year beyond 55 years, the respondent did not deny the same in his reply dated 14.6.1999. On the other hand, he admitted such absence and tried to explain it as being on account of advanced age and ill health of himself and wife. The fact that the unauthorized absence was more than 20 days during a period of one year was never disputed. The discrepancy in the oral evidence of MW1 and the muster rolls in regard to the total number of unauthorized absence, even if true, was not material, as the respondent was not being punished for any specific unauthorized absence. The unauthorized absence was only the background material to reach the decision that respondents service was unsatisfactory. 11. The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired. | 1[ds]The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired. | 1 | 2,974 | 656 | ### 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:
service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason." The said decision will not assist the respondent. The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55 years. 9. The learned counsel for the respondent next submitted that recourse to `compulsory retirement should be only in `public interest; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.10. The respondent next drew our attention to the finding of the High Court that there was some discrepancy in regard to the number of days of unauthorized absence during the period of one year after 55 years and such unauthorized absence could not be a ground for compulsory retirement without an enquiry. It is true that the High Court has referred to the evidence of MW-1 and the entries in the muster rolls, to point out the discrepancy. MW1 had stated before the tribunal the period of unauthorized absence was 27 days whereas the entries in the muster rolls showed such absence was 32 days and that there was also an admission that out of the said 32 days, 6 days was availed as sick leave. But that cannot be a ground to conclude that the order of compulsory retirement was bad. The Tribunal and the High Court were not examining `unauthorized absence as a misconduct which was subject matter of a charge. When the show cause notice dated 27.5.1999 referred to the absence for 20 days during the period of one year beyond 55 years, the respondent did not deny the same in his reply dated 14.6.1999. On the other hand, he admitted such absence and tried to explain it as being on account of advanced age and ill health of himself and wife. The fact that the unauthorized absence was more than 20 days during a period of one year was never disputed. The discrepancy in the oral evidence of MW1 and the muster rolls in regard to the total number of unauthorized absence, even if true, was not material, as the respondent was not being punished for any specific unauthorized absence. The unauthorized absence was only the background material to reach the decision that respondents service was unsatisfactory. 11. The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired.
### Response:
1
### Explanation:
The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired.
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R.Venkata Ramudu & Anr Etc Vs. State Of A.P.Tr.Sec | RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Being un-equals in the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717 , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1. Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority - (a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard. | 1[ds]26. It can be seen from the above note that (i) it expressly prohibits the probationer from being discharged for failure to pass the Account test, and (ii) it stipulates that the probation shall be extended until the probationer passes the test. Such extension is mandated only in those cases where the probationer does not pass the relevant test. The note does not prevent the probationer from being discharged at the end of the period of probation if his performance is otherwise unsatisfactory.27. It is agreed on all hands that the said Note is a legislative device and part of the Rule 8(c). Therefore, it carries the same degree of efficacy as the Rule itself. While Rule 8(c) obligates a probationer to pass the Account Test within the period of probation, the consequences of not passing the test are provided in the Note.28. Hence, the 1st part of the 4th conclusion of the Tribunal that the Note "cannot take away the effect of the Rule itself" is an inaccurate statement in law.Whether failure to pass the prescribed tests is one of the grounds under Rule 17(a)(ii) for either terminating the probation or extending it, is required to be examined. In our view, it is not. Because the aspect of the matter is dealt under Rule 16(e) and (f) and Rule 17(b).35. The existence of specific provisions in Rule 16(e) and f (i) obviously would not permit a construction that the power under Rule 17(a)(ii) to take within its sweep the power to deal with the cases of the probationers who fail to pass in the prescribed tests. Neither Rules 16(e) and (f) or 17(a) and (b) contain aclause providing for overriding effect to them over the special Rule 8 of SPECIAL RULES.36. Rule 18 [9*]of the GENERAL RULES deals with the conclusion of probation. Rule 18(a) stipulates that at the end of the prescribed period of probation or the extended period of probation, the appointing authority shall determine whether the probationer satisfactorily completed his probation and make a declaration of the satisfactory completion of probation, if the appointing authority is satisfied in that regard. The Rule stipulates that such a declaration is to be made at the end of the period of probation or the extended period of probation. [9* See F/N 8.]37. Rule 16(h) contains a stipulation which is in the nature of an exception to the stipulation contained in Rule 16(a) [10*]. While 16(a) declares that a direct recruit shall commence his probation "from the date of his joining the duty or from such other date as may be specified by the appointing authority", Rule 16(h) [11*]stipulates that a probationer who does not pass the prescribed test "shall be deemed to have commenced the probation with effect from the date to be fixed by the Government". It creates a fiction by which the date of commencement of probation is altered from the actual date of commencement. [10* Rule 16(a)Commencement of probation for direct recruitsA person appointed in accordance with the rules, otherwise than under Rule 10, by direct recruitment shall commence his probation from the date of his joining the duty or from such other date as may be specified by the appointing authority : Provided that a person having been appointed temporarily under Rule 10 to a post in any service, class or category or having been so appointed otherwise than in accordance with the rules governing appointment to such post, subsequently appointed to the same post, in the same service or class or category, in the same unit of appointment, in accordance with the rules, shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, subject to the condition that his commencement of probation from an earlier date shall not adversely affect any person who has been appointed earlier or simultaneously, to the same service, class or category in the same unit.] [11* Rule 16(h)Change of date of commencement of probationNotwithstanding anything contained in the special rules or(a) and (b) of Rule 33, a probationer who does not pass the prescribed tests or acquire the prescribed special qualifications within the period of probation or within the extended period of probation under Rule 17 and whose probation is further extended by the Government by an order under Rule 31, till the date of his passing such tests or acquiring such qualifications, shall be deemed to have commenced the probation with effect from the date to be fixed by the Government, which would be anterior to a date to his passing such tests or acquiring such special qualifications, so, however, that his passing such tests or acquiring such special qualifications, so, however, that the interval between the two dates shall be equivalent to the prescribed period of probation, whether on duty or otherwise and seniority of such probationer shall be determined with reference to the date so fixed : Provided that nothing in thisshall apply in the cases of persons appointed to the class, category or grade in a service prior to the 9th March, 1981 and whose seniority in the said class, category or grade was fixed under(b) of Rule 33, prior to the said date.]38. However, the occasion for the exercise of power to fix an altered date of commencement of probation under Rule 16(h) arises in two contingencies: (i) a probationer does not pass the prescribed test within the prescribed period of probation, and (ii) a probationer does not pass the prescribed test within the extended period, either under Rule 17 or Rule 31, of probation.39. Having regard to the scheme of Rules 16(h) and 17, which authorise the extension of the period of probation only by a period not exceeding one year, cases of the probationers, whose period of probation is extended beyond a period of one year, are obviously not within the sweep of Rule 16(h). No doubt that Rule 31 enables the Government to extend the period of probation even beyond one year in contradistinction of the stipulation contained in Rule 17 for extension of period of probation by one year. But in the cases of probationers whose probation is extended automatically by a declaration under law, such as the case on hand, the question of extending the probation by resorting to the powers under Rule 31 does not arise. Therefore, the authority conferred under Rule 16(h) to fix an altered date of commencement of probation of those probationers who do not pass the prescribed test within the prescribed period of probation must be understood having regard to the later part of the rule dealing with the extension of probation. Theclause occurring in the opening part of Rule 16(h) must be understood as only enabling the fixation of an altered date of commencement of probation in the cases of those probationers governed by SPECIAL RULES, where the SPECIAL RULES do not provide for the extension of period of probation, either by a definite or indefinite period. In the context of the SPECIAL RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Beingin the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717 , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1. Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority(a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard. | 1 | 6,830 | 2,516 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Being un-equals in the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717 , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1. Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority - (a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard.
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SPECIAL RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Beingin the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717 , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1. Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority(a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard.
|
Union of India and Ors Vs. Subrata Das | offer is made by an employee, the same would amount to resignation in praesenti cannot be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also.”The Court held that where a group of employees had accepted an ex gratia payment, they could not be permitted to approbate or reprobate or resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559. is an authority for the proposition that even if a notice of voluntary retirement which is moved by an employee is accepted by the authority within the time fixed, the employee has a locus poenitentiae to withdraw the proposal for voluntary retirement before the date of retirement is reached.36. The above principles are of general application. However, the present case stands on a different footing and is clearly distinguishable. All the officers in the present case submitted an application under the terms of the Human Resource Policy which governed them. Availing the benefit of the policy, they proceeded to opt for a pre-release course. The policy under which they sought the benefit of a premature severance of service conditioned the right of withdrawal to the stipulations contained in paragraph 18. Paragraph 18 of the Human Resource Policy makes it abundantly clear that there is no unilateral right to withdraw from a request for PSS once it has been approved. There is, as we have seen, a clear rationale for such a restriction. The officers involved in this batch of cases applied under the terms of the policy, seeking PSS. It is not open to them to approbate or reprobate. They cannot rely on the policy and seek to repudiate Para 18 conditioning the right to withdraw.37. The determination of the number of PSS applications that should be granted is based on a careful exercise of assessing the manpower requirements of the Air Force. The approval of a request of an officer for PSS has consequences both for the service and for the officer individually until the eventual severance of service takes place. During the period between the approval of the application and the date of severance, arrangements are made to meet the operational requirements of the Air Force. As for the officer, they have the option to proceed on a pre-release course. The operational requirements of the Air Force and the need to carefully structure exits under the Human Resource Policy clearly distinguishes the present case from the judgments relied on by the respondents. In the reply filed by the Union of India in the Civil Appeal involving Wing Commander Subrata Das, it has been stated :“That in the current year (2013), 143 officers have applied for PSS and 89 officers were granted PSS under the provisions of this HRP. 25 officers had applied for a change of date due to various reasons and requests of 20 officers has been acceded to for various reasons. 13 officers have requested for withdrawal of approved PSS and requests of 11 officers have been acceded to. Request of only two officers were not acceded to.”38. The Tribunal has, in its decisions in the cases involving Wing Commander Subrata Das, P K Sen and Group Captain Rajeev Moitra, clearly erred in failing to notice the critical difference in the operational requirements of the service of an Armed Force of the Nation. The Tribunal has also failed to collectively appreciate the terms of the policy, its rationale and the basis on which paragraph 18 restricts the right to withdraw from an approved PSS application. Paragraph 18 is founded on the principle that even though a severance from service will take place at a future date, an application for PSS which has been approved cannot be withdrawn except on the grounds contemplated in that paragraph. Whether a request to withdraw an approved PSS application meets the criterion of “extreme compassionate grounds” has to be considered by the competent authority. So long as the assessment is fair and bona fide, the decision, in our view, ought not to be faulted.39. The right to withdraw from an approved PSS application is neither absolute nor unqualified. We are firmly of the view that the decisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds to the question of whether the grounds which were urged fulfilled the “extreme compassionate grounds” criterion. The authorities were also entitled to make a final determination based on the needs and exigencies of service. The Tribunal has erroneously interfered with the exercise of the administrative judgment by the authorities of the Air Force. We therefore disapprove of the view which has been taken by the Tribunal in the cases involving Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev Moitra. The decision of the Tribunal in the case of Wing Commander Rachit Bhatnagar does not merit our interference for the reasons which we have indicated earlier.40. The situation as it stands, is that Wing Commanders Subrata Das and P K Sen resumed their duties after the decision of the Tribunal. Wing Commander P K Sen has been promoted as Group Captain. Wing Commanders Subrata Das and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31 January 2020 respectively. | 0[ds]30. It is in this background that it has been submitted, and in our view with justification, that the right to withdraw a request for PSS from an armed force is not absolute or unconditional. Paragraph 18 of the Human Resource Policy conditions the withdrawal of an approved PSS application by a stipulation that such a request can be permitted only as an exception and underParagraph 18 contemplates that a request for withdrawal of a PSS application, in order to be effective, needs to be permitted. The use of the termis indicative of the fact that a withdrawal of a request is not a matter of right. A withdrawal can be permitted by the competent authority only by way ofeme compassionateMoreover, officers who have undergone a pre-release course are not permitted to request for a withdrawal.31. Paragraph 18 clearly indicates that the general principle of service law which has been applied to the civil services, does not apply in the situation of the Air Force. In matters relating to civilian employment, particularly in the civil services, voluntary severance of service may either be in the form of a unilateral or bilateral act. Where severance follows on the basis of a unilateral act by an employee, no acceptance of the request for severance is required. On the other hand, where the severance contemplated is bilateral in nature, the request of an employee for severance becomes effective only upon its acceptance by the employer. In the context of service jurisprudence, the principle of law which has been enunciated in the decisions of this Court is that where an employee tenders a resignation from service with effect from a future date, it is open to the employee to withdraw from the resignation until it takes effect on the future date soabove observations indicate that the unrestrained choice of an employee to withdraw a resignation may yet be constrained if the employee had made arrangements acting on the resignation or letter to make another employee available for the job.33. It is in this background that it is necessary to advert to the judgment of a two judge Bench of this Court in Parthasarathy (supra). The judgment merits a close analysis. In that case, the respondent was a Wing Commander in the Indian Air Force and submitted an application on 21 July 1985 for premature retirement from service with the proposed date of severance from service as 31 August 1986. When the application was being processed, he moved an amendment to his earlier application stating that the actual date of release could be decided taking into account the pensionary recommendations of the Fourth Pay Commission report which was expected in November 1985. On 19 February 1986, the respondent submitted an application seeking to withdraw his earlier request for premature retirement. It was thereafter on 7 March 1986 that he was served with a communication that on 20 February 1986, the Air Headquarters had accepted his application to withdraw from service and that he would retire prematurely at his own request from 31 August 1986.34. The judgment in Parthasarathy (supra) therefore dealt with a situation where the officer had stipulated a future date with effect from which his premature retirement would become effective. However, before the application for retirement was accepted, he withdrew his request and it was only thereafter that Air Headquarters accepted his original application and communicated the decision to retire him from service.facts of the case and the above extract clearly make the judgment of this court in Parthasarathy (supra) distinguishable. In Parthasarathy, the officer withdrew his request for premature retirement before the effective future date had arrived. He was sought to be retired prematurely thereafter by the government despite the request having been withdrawn before it was accepted. The next aspect of the judgment which merits emphasis is the observation that nothing in the form of any statutory provision or rule had been brought to the notice of the court which would impede or deny the right of the employee to withdraw a resignation before the date on which the resignation could have become effective. Evidently, the two judge Bench was not dealing with a provision akin to Paragraph 18 of the Human Resource Policy dated 5 August 2011 which is involved in the present case. It was in that background that the court held that there was nothing to impede or deny the right of the employee to withdraw from the resignation. The judgment of this Court in Parthasarathy (supra) is thereforeCourt held that where a group of employees had accepted an ex gratia payment, they could not be permitted to approbate or reprobate or resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559. is an authority for the proposition that even if a notice of voluntary retirement which is moved by an employee is accepted by the authority within the time fixed, the employee has a locus poenitentiae to withdraw the proposal for voluntary retirement before the date of retirement is reached.36. The above principles are of general application. However, the present case stands on a different footing and is clearly distinguishable. All the officers in the present case submitted an application under the terms of the Human Resource Policy which governed them. Availing the benefit of the policy, they proceeded to opt for a pre-release course. The policy under which they sought the benefit of a premature severance of service conditioned the right of withdrawal to the stipulations contained in paragraph 18. Paragraph 18 of the Human Resource Policy makes it abundantly clear that there is no unilateral right to withdraw from a request for PSS once it has been approved. There is, as we have seen, a clear rationale for such a restriction. The officers involved in this batch of cases applied under the terms of the policy, seeking PSS. It is not open to them to approbate or reprobate. They cannot rely on the policy and seek to repudiate Para 18 conditioning the right to withdraw.37. The determination of the number of PSS applications that should be granted is based on a careful exercise of assessing the manpower requirements of the Air Force. The approval of a request of an officer for PSS has consequences both for the service and for the officer individually until the eventual severance of service takes place. During the period between the approval of the application and the date of severance, arrangements are made to meet the operational requirements of the Air Force. As for the officer, they have the option to proceed on a pre-release course. The operational requirements of the Air Force and the need to carefully structure exits under the Human Resource Policy clearly distinguishes the present case from the judgments relied on by the respondents.The Tribunal has, in its decisions in the cases involving Wing Commander Subrata Das, P K Sen and Group Captain Rajeev Moitra, clearly erred in failing to notice the critical difference in the operational requirements of the service of an Armed Force of the Nation. The Tribunal has also failed to collectively appreciate the terms of the policy, its rationale and the basis on which paragraph 18 restricts the right to withdraw from an approved PSS application. Paragraph 18 is founded on the principle that even though a severance from service will take place at a future date, an application for PSS which has been approved cannot be withdrawn except on the grounds contemplated in that paragraph. Whether a request to withdraw an approved PSS application meets the criterion ofhas to be considered by the competent authority. So long as the assessment is fair and bona fide, the decision, in our view, ought not to be faulted.39. The right to withdraw from an approved PSS application is neither absolute nor unqualified. We are firmly of the view that the decisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds to the question of whether the grounds which were urged fulfilled thecriterion. The authorities were also entitled to make a final determination based on the needs and exigencies of service. The Tribunal has erroneously interfered with the exercise of the administrative judgment by the authorities of the Air Force. We therefore disapprove of the view which has been taken by the Tribunal in the cases involving Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev Moitra. The decision of the Tribunal in the case of Wing Commander Rachit Bhatnagar does not merit our interference for the reasons which we have indicated earlier.40. The situation as it stands, is that Wing Commanders Subrata Das and P K Sen resumed their duties after the decision of the Tribunal. Wing Commander P K Sen has been promoted as Group Captain. Wing Commanders Subrata Das and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31 January 2020 respectively. | 0 | 9,386 | 1,612 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
offer is made by an employee, the same would amount to resignation in praesenti cannot be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also.”The Court held that where a group of employees had accepted an ex gratia payment, they could not be permitted to approbate or reprobate or resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559. is an authority for the proposition that even if a notice of voluntary retirement which is moved by an employee is accepted by the authority within the time fixed, the employee has a locus poenitentiae to withdraw the proposal for voluntary retirement before the date of retirement is reached.36. The above principles are of general application. However, the present case stands on a different footing and is clearly distinguishable. All the officers in the present case submitted an application under the terms of the Human Resource Policy which governed them. Availing the benefit of the policy, they proceeded to opt for a pre-release course. The policy under which they sought the benefit of a premature severance of service conditioned the right of withdrawal to the stipulations contained in paragraph 18. Paragraph 18 of the Human Resource Policy makes it abundantly clear that there is no unilateral right to withdraw from a request for PSS once it has been approved. There is, as we have seen, a clear rationale for such a restriction. The officers involved in this batch of cases applied under the terms of the policy, seeking PSS. It is not open to them to approbate or reprobate. They cannot rely on the policy and seek to repudiate Para 18 conditioning the right to withdraw.37. The determination of the number of PSS applications that should be granted is based on a careful exercise of assessing the manpower requirements of the Air Force. The approval of a request of an officer for PSS has consequences both for the service and for the officer individually until the eventual severance of service takes place. During the period between the approval of the application and the date of severance, arrangements are made to meet the operational requirements of the Air Force. As for the officer, they have the option to proceed on a pre-release course. The operational requirements of the Air Force and the need to carefully structure exits under the Human Resource Policy clearly distinguishes the present case from the judgments relied on by the respondents. In the reply filed by the Union of India in the Civil Appeal involving Wing Commander Subrata Das, it has been stated :“That in the current year (2013), 143 officers have applied for PSS and 89 officers were granted PSS under the provisions of this HRP. 25 officers had applied for a change of date due to various reasons and requests of 20 officers has been acceded to for various reasons. 13 officers have requested for withdrawal of approved PSS and requests of 11 officers have been acceded to. Request of only two officers were not acceded to.”38. The Tribunal has, in its decisions in the cases involving Wing Commander Subrata Das, P K Sen and Group Captain Rajeev Moitra, clearly erred in failing to notice the critical difference in the operational requirements of the service of an Armed Force of the Nation. The Tribunal has also failed to collectively appreciate the terms of the policy, its rationale and the basis on which paragraph 18 restricts the right to withdraw from an approved PSS application. Paragraph 18 is founded on the principle that even though a severance from service will take place at a future date, an application for PSS which has been approved cannot be withdrawn except on the grounds contemplated in that paragraph. Whether a request to withdraw an approved PSS application meets the criterion of “extreme compassionate grounds” has to be considered by the competent authority. So long as the assessment is fair and bona fide, the decision, in our view, ought not to be faulted.39. The right to withdraw from an approved PSS application is neither absolute nor unqualified. We are firmly of the view that the decisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds to the question of whether the grounds which were urged fulfilled the “extreme compassionate grounds” criterion. The authorities were also entitled to make a final determination based on the needs and exigencies of service. The Tribunal has erroneously interfered with the exercise of the administrative judgment by the authorities of the Air Force. We therefore disapprove of the view which has been taken by the Tribunal in the cases involving Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev Moitra. The decision of the Tribunal in the case of Wing Commander Rachit Bhatnagar does not merit our interference for the reasons which we have indicated earlier.40. The situation as it stands, is that Wing Commanders Subrata Das and P K Sen resumed their duties after the decision of the Tribunal. Wing Commander P K Sen has been promoted as Group Captain. Wing Commanders Subrata Das and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31 January 2020 respectively.
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own request from 31 August 1986.34. The judgment in Parthasarathy (supra) therefore dealt with a situation where the officer had stipulated a future date with effect from which his premature retirement would become effective. However, before the application for retirement was accepted, he withdrew his request and it was only thereafter that Air Headquarters accepted his original application and communicated the decision to retire him from service.facts of the case and the above extract clearly make the judgment of this court in Parthasarathy (supra) distinguishable. In Parthasarathy, the officer withdrew his request for premature retirement before the effective future date had arrived. He was sought to be retired prematurely thereafter by the government despite the request having been withdrawn before it was accepted. The next aspect of the judgment which merits emphasis is the observation that nothing in the form of any statutory provision or rule had been brought to the notice of the court which would impede or deny the right of the employee to withdraw a resignation before the date on which the resignation could have become effective. Evidently, the two judge Bench was not dealing with a provision akin to Paragraph 18 of the Human Resource Policy dated 5 August 2011 which is involved in the present case. It was in that background that the court held that there was nothing to impede or deny the right of the employee to withdraw from the resignation. The judgment of this Court in Parthasarathy (supra) is thereforeCourt held that where a group of employees had accepted an ex gratia payment, they could not be permitted to approbate or reprobate or resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559. is an authority for the proposition that even if a notice of voluntary retirement which is moved by an employee is accepted by the authority within the time fixed, the employee has a locus poenitentiae to withdraw the proposal for voluntary retirement before the date of retirement is reached.36. The above principles are of general application. However, the present case stands on a different footing and is clearly distinguishable. All the officers in the present case submitted an application under the terms of the Human Resource Policy which governed them. Availing the benefit of the policy, they proceeded to opt for a pre-release course. The policy under which they sought the benefit of a premature severance of service conditioned the right of withdrawal to the stipulations contained in paragraph 18. Paragraph 18 of the Human Resource Policy makes it abundantly clear that there is no unilateral right to withdraw from a request for PSS once it has been approved. There is, as we have seen, a clear rationale for such a restriction. The officers involved in this batch of cases applied under the terms of the policy, seeking PSS. It is not open to them to approbate or reprobate. They cannot rely on the policy and seek to repudiate Para 18 conditioning the right to withdraw.37. The determination of the number of PSS applications that should be granted is based on a careful exercise of assessing the manpower requirements of the Air Force. The approval of a request of an officer for PSS has consequences both for the service and for the officer individually until the eventual severance of service takes place. During the period between the approval of the application and the date of severance, arrangements are made to meet the operational requirements of the Air Force. As for the officer, they have the option to proceed on a pre-release course. The operational requirements of the Air Force and the need to carefully structure exits under the Human Resource Policy clearly distinguishes the present case from the judgments relied on by the respondents.The Tribunal has, in its decisions in the cases involving Wing Commander Subrata Das, P K Sen and Group Captain Rajeev Moitra, clearly erred in failing to notice the critical difference in the operational requirements of the service of an Armed Force of the Nation. The Tribunal has also failed to collectively appreciate the terms of the policy, its rationale and the basis on which paragraph 18 restricts the right to withdraw from an approved PSS application. Paragraph 18 is founded on the principle that even though a severance from service will take place at a future date, an application for PSS which has been approved cannot be withdrawn except on the grounds contemplated in that paragraph. Whether a request to withdraw an approved PSS application meets the criterion ofhas to be considered by the competent authority. So long as the assessment is fair and bona fide, the decision, in our view, ought not to be faulted.39. The right to withdraw from an approved PSS application is neither absolute nor unqualified. We are firmly of the view that the decisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds to the question of whether the grounds which were urged fulfilled thecriterion. The authorities were also entitled to make a final determination based on the needs and exigencies of service. The Tribunal has erroneously interfered with the exercise of the administrative judgment by the authorities of the Air Force. We therefore disapprove of the view which has been taken by the Tribunal in the cases involving Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev Moitra. The decision of the Tribunal in the case of Wing Commander Rachit Bhatnagar does not merit our interference for the reasons which we have indicated earlier.40. The situation as it stands, is that Wing Commanders Subrata Das and P K Sen resumed their duties after the decision of the Tribunal. Wing Commander P K Sen has been promoted as Group Captain. Wing Commanders Subrata Das and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31 January 2020 respectively.
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Rajkumar & Others Vs. The State of Maharashtra & Others | Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.13. The learned counsel for the applicant submitted that at the most there is only breach of the provision of Section 18(vi) of the Special Enactment and punishment for it is only two years, as provided in Section 27 (d) of the Act. The learned counsel submitted that the provision of Section 36 (a)(c) shows that only offences mentioned in Section 36(a)(c)(a) are cognizable. The learned counsel for the applicants submitted that Section 32 of the Act provides that no prosecution under the provisions of the Act can be instituted otherwise then by filing proceeding as laid down in the Section 32. The relevant portion of provision of Section 32 of the Act is as under:Cognizance of offences (1) No prosecution under this Chapter shall be instituted except by -(a) Inspector, or(b) any Gazetted Officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government or(c) the person aggrieved or(d) a recognized consumer association whether such person is a member of that association or not.(2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter.(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.14. The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law. Further, the provision of section 2 of the Act is as under:Application of other laws not barred - The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 ( 2 of 1930), and other law for the time being in force.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court.17. The learned counsel for the applicants placed reliance on some observations made by this Court in the [Criminal Writ Petition No. 846 of 2016, Rajendra Madhav Pate Vs. The State of Maharashtra and Others] decided on 03.10.2016. The facts of this case show that the FIR was given only in respect of the offence committed under the Act and there was no offence under provisions of Indian Penal Code. Reliance was placed on the observation made in other cases like Mahendra S/o Kanhaiyyalal Jain Vs. Vivek Manohar Jagtap and others 2010 All MR . (Cri) 742 ( Aurangabad Bench) Parminder Kaur Vs. State of Uttar Pradesh and Another 2010 ALL MR (Cri) 332 (Suprme Court) The facts of both these cases were totally different and so these cases are not helpful to the applicants.18. On the other hand the learned A.P.P produced copy of order made by this Court in Criminal Application No. 1166 of 2018 Sushilkumar S/o Kishanlal Modhok Vs. The State of Maharashtra and others decided on 27.06.2018. In this case, there was allegations of cheating under Section 420 of the Indian Penal Code along with other provisions of IPC and some provision of Chapter IV and V of the Act were mentioned in the FIR. In this case, this Court held that the crime was rightly registered on the basis of report given by the Drug Inspector. Reliance was also placed on decision given by the Supreme Court in Criminal Appeal No. 1195 of 2018 (State of Maharashtra and Others Vs. Sayyed Hassan Sayyed Subhan and others). The facts show that the crime was registered under the provisions of Food Safety and Standard Act 2006 and also the provision of the IPC like Section 272 and 328. Following points were involved in the matter.(i) Whether the Food Safety Officers can lodge complaints for offences punishable under the IPC(ii) Whether the acts complained amounted to any offence punishable under the provisions of the IPCThe Apex Court held that there is no bar to prosecute persons under Indian Penal Code if cognizable offence is made out even if the offence under the Food Safety and Standard Act is committed. The cases like State of NCT of Delhi Vs. Sanjay with Jaysukh Bavanji Shingalia Vs. State of Gujarat and another with Malabhai Shalabhai Rabari And others Vs. State of Gujarat and Others with Kalubhai Dulabhai Khachar Vs. State of Gujarat and another And Sondabhai Hanubhai Bharwad Vs. State of Gujarat and Another AIR 2015 Supreme Court 75 were referred by the Apex Court for deciding this case. That case was on different provisions of different Act but in that case also the Apex Court has laid down that if there is no specific bar, the cognizance can be taken by the police on the basis of FIR if cognizable offence is committed. | 1[ds]10. The applicants of the first proceeding, (Manish Agency) have produced some record like photo copies of some bills in the present proceeding and the learned counsel for them submitted that on those photo copies there were no stamps and such bills were handed over by Manish Agency to the Medical Representatives. It is already mentioned that the bills in the names of as many as 21 customers are mentioned in the FIR. It was submitted for Manish Agency that though such bills were prepared, they were credit bills and as the purchasers shown on the bills did not make payment, the medicines were not supplied to them. It was submitted that the medicine shown in those bills were then sold to others.This submission cannot be considered at any stage of the matter in view of the specific provisions of the aforesaid special enactment. On the bills collected by the Drug Inspector, in writing also the applicants admitted that these bills (Memos) were raised by them. Thus it was sale transaction though on credit and it was completed as the bills were issued by these applicants. There is one more circumstance like information supplied by the Biocon Limited that such record was supplied to it by Manish Agency and record also shows that medicine supplied by it to Manish Agency were sold to the retailers by Manish Agency.11. If the submission made by the learned counsel for the Manish Agency is considered that creates one more probability. Probability created is that the medicine of the same batch number were sold to the different persons and there is the possibility that more medicines were actually manufactured than the record of batch number created by the manufacturing Company. The investigating agency needs to look into such probability also. In any case the aforesaid record is not consistent and admittedly the bills on which the Drug Inspector is relying were not true and correct bills. That record was created as per the provisions of the Special Enactment Act and Rules. Manish Agency has made specific allegation against the Medical Representatives that the bills were handed over to him and he probably used stamp of the purchaser and so it cannot be said that Medical Representative had not played any role in this matter. Unfortunately specific information regarding purpose for which the medicine mentioned in this record was not produced to the Court. Thus on merits, it is no possible to quash the FIR in respect of the applicants from both the proceedings.On law point it was submitted that by creation of such record no loss is caused to anybody by Manish Agency and so no offence is committed.This submissions is not acceptable. Firstly when admittedly record is false and it was to be used as per the provision of the Act, there is clear breach of the provision of the Act and Rules 65(5) of the Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court. | 1 | 2,348 | 772 | ### 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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Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.13. The learned counsel for the applicant submitted that at the most there is only breach of the provision of Section 18(vi) of the Special Enactment and punishment for it is only two years, as provided in Section 27 (d) of the Act. The learned counsel submitted that the provision of Section 36 (a)(c) shows that only offences mentioned in Section 36(a)(c)(a) are cognizable. The learned counsel for the applicants submitted that Section 32 of the Act provides that no prosecution under the provisions of the Act can be instituted otherwise then by filing proceeding as laid down in the Section 32. The relevant portion of provision of Section 32 of the Act is as under:Cognizance of offences (1) No prosecution under this Chapter shall be instituted except by -(a) Inspector, or(b) any Gazetted Officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government or(c) the person aggrieved or(d) a recognized consumer association whether such person is a member of that association or not.(2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter.(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.14. The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law. Further, the provision of section 2 of the Act is as under:Application of other laws not barred - The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 ( 2 of 1930), and other law for the time being in force.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court.17. The learned counsel for the applicants placed reliance on some observations made by this Court in the [Criminal Writ Petition No. 846 of 2016, Rajendra Madhav Pate Vs. The State of Maharashtra and Others] decided on 03.10.2016. The facts of this case show that the FIR was given only in respect of the offence committed under the Act and there was no offence under provisions of Indian Penal Code. Reliance was placed on the observation made in other cases like Mahendra S/o Kanhaiyyalal Jain Vs. Vivek Manohar Jagtap and others 2010 All MR . (Cri) 742 ( Aurangabad Bench) Parminder Kaur Vs. State of Uttar Pradesh and Another 2010 ALL MR (Cri) 332 (Suprme Court) The facts of both these cases were totally different and so these cases are not helpful to the applicants.18. On the other hand the learned A.P.P produced copy of order made by this Court in Criminal Application No. 1166 of 2018 Sushilkumar S/o Kishanlal Modhok Vs. The State of Maharashtra and others decided on 27.06.2018. In this case, there was allegations of cheating under Section 420 of the Indian Penal Code along with other provisions of IPC and some provision of Chapter IV and V of the Act were mentioned in the FIR. In this case, this Court held that the crime was rightly registered on the basis of report given by the Drug Inspector. Reliance was also placed on decision given by the Supreme Court in Criminal Appeal No. 1195 of 2018 (State of Maharashtra and Others Vs. Sayyed Hassan Sayyed Subhan and others). The facts show that the crime was registered under the provisions of Food Safety and Standard Act 2006 and also the provision of the IPC like Section 272 and 328. Following points were involved in the matter.(i) Whether the Food Safety Officers can lodge complaints for offences punishable under the IPC(ii) Whether the acts complained amounted to any offence punishable under the provisions of the IPCThe Apex Court held that there is no bar to prosecute persons under Indian Penal Code if cognizable offence is made out even if the offence under the Food Safety and Standard Act is committed. The cases like State of NCT of Delhi Vs. Sanjay with Jaysukh Bavanji Shingalia Vs. State of Gujarat and another with Malabhai Shalabhai Rabari And others Vs. State of Gujarat and Others with Kalubhai Dulabhai Khachar Vs. State of Gujarat and another And Sondabhai Hanubhai Bharwad Vs. State of Gujarat and Another AIR 2015 Supreme Court 75 were referred by the Apex Court for deciding this case. That case was on different provisions of different Act but in that case also the Apex Court has laid down that if there is no specific bar, the cognizance can be taken by the police on the basis of FIR if cognizable offence is committed.
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### Explanation:
10. The applicants of the first proceeding, (Manish Agency) have produced some record like photo copies of some bills in the present proceeding and the learned counsel for them submitted that on those photo copies there were no stamps and such bills were handed over by Manish Agency to the Medical Representatives. It is already mentioned that the bills in the names of as many as 21 customers are mentioned in the FIR. It was submitted for Manish Agency that though such bills were prepared, they were credit bills and as the purchasers shown on the bills did not make payment, the medicines were not supplied to them. It was submitted that the medicine shown in those bills were then sold to others.This submission cannot be considered at any stage of the matter in view of the specific provisions of the aforesaid special enactment. On the bills collected by the Drug Inspector, in writing also the applicants admitted that these bills (Memos) were raised by them. Thus it was sale transaction though on credit and it was completed as the bills were issued by these applicants. There is one more circumstance like information supplied by the Biocon Limited that such record was supplied to it by Manish Agency and record also shows that medicine supplied by it to Manish Agency were sold to the retailers by Manish Agency.11. If the submission made by the learned counsel for the Manish Agency is considered that creates one more probability. Probability created is that the medicine of the same batch number were sold to the different persons and there is the possibility that more medicines were actually manufactured than the record of batch number created by the manufacturing Company. The investigating agency needs to look into such probability also. In any case the aforesaid record is not consistent and admittedly the bills on which the Drug Inspector is relying were not true and correct bills. That record was created as per the provisions of the Special Enactment Act and Rules. Manish Agency has made specific allegation against the Medical Representatives that the bills were handed over to him and he probably used stamp of the purchaser and so it cannot be said that Medical Representative had not played any role in this matter. Unfortunately specific information regarding purpose for which the medicine mentioned in this record was not produced to the Court. Thus on merits, it is no possible to quash the FIR in respect of the applicants from both the proceedings.On law point it was submitted that by creation of such record no loss is caused to anybody by Manish Agency and so no offence is committed.This submissions is not acceptable. Firstly when admittedly record is false and it was to be used as per the provision of the Act, there is clear breach of the provision of the Act and Rules 65(5) of the Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court.
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National Insurance Co. Ltd Vs. Prema Devi | "goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers""2(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage.""2(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:""2(33) "transport vehicle" means a public service vehicle or a goods vehicle:"The Act (New Act):"2(14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:""2(35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:""2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:""2(47) "transport vehicle" means a pubic services vehicle a goods carriage an educational institution bus or a private service vehicle:" (Underlined for emphasis)10. "Liability" as defined in Section 145(c) of the Act reads as follows: "Liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140." 11. Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old Act. Proviso to Section 147 of the Act reads as follows:Provided that a policy shall not be required (i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injure sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act. 1993 (8 of 1923) in respect of the death of or bodily injury to, any such employee-(a) engaged in driving the vehicle, or(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or(c) if it is a good carriage, being carried in the vehicle, or(ii) to cover any contractual liability." 12. It is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:- "except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises." 13. The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short WC Act"). There is no reference to any passenger in "goods carriage".14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singhs case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC 339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1 ) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243 ), the view in Asha Ranis case (supra) was reiterated." 8. Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles.9. | 1[ds]8. In Satpal Singhs case (supra) this Court proceeded on the footing that provisions of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act as it stood prior to the amendment in 1994.9. On a closer reading of the expressions "goods vehicle". "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Section 2(14), 2(35) 2(40) and 2(47) of the Act, it is clear that there are conceptual differences.The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short WC Act"). There is no reference to any passenger in "goods carriage".14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singhs case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC 339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1 ) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243 ), the view in Asha Ranis case (supra) was reiterated.Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles. | 1 | 1,699 | 626 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
"goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers""2(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage.""2(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:""2(33) "transport vehicle" means a public service vehicle or a goods vehicle:"The Act (New Act):"2(14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:""2(35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:""2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:""2(47) "transport vehicle" means a pubic services vehicle a goods carriage an educational institution bus or a private service vehicle:" (Underlined for emphasis)10. "Liability" as defined in Section 145(c) of the Act reads as follows: "Liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140." 11. Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old Act. Proviso to Section 147 of the Act reads as follows:Provided that a policy shall not be required (i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injure sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act. 1993 (8 of 1923) in respect of the death of or bodily injury to, any such employee-(a) engaged in driving the vehicle, or(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or(c) if it is a good carriage, being carried in the vehicle, or(ii) to cover any contractual liability." 12. It is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:- "except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises." 13. The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short WC Act"). There is no reference to any passenger in "goods carriage".14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singhs case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC 339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1 ) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243 ), the view in Asha Ranis case (supra) was reiterated." 8. Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles.9.
### Response:
1
### Explanation:
8. In Satpal Singhs case (supra) this Court proceeded on the footing that provisions of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act as it stood prior to the amendment in 1994.9. On a closer reading of the expressions "goods vehicle". "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Section 2(14), 2(35) 2(40) and 2(47) of the Act, it is clear that there are conceptual differences.The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short WC Act"). There is no reference to any passenger in "goods carriage".14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singhs case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC 339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1 ) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243 ), the view in Asha Ranis case (supra) was reiterated.Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles.
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