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STATE OF M.P Vs. DUNGAJI(D) BY LRS | dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record. | 1[ds]7. Having heard learned Counsel appearing on behalf of the respective parties and considering the evidence on record and the findings of facts recorded by the learned Trial Court confirmed by the First Appellate Court, it appears that by Order dated 18.05.1976 and after following due procedure required to be followed under the provisions of Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, the Competent Authority declared 57.32 acres of land as surplus land under the provisions of the Act 1960. As Kaveribai¬wife of Dungabai inherited 19.89 hectares of land from her mother Amritabai, therefore, as such, she became the absolute owner of the aforesaid land. As per the provisions of the Act, the land held by the wife was required to be included in the holding of the family of the husband. Therefore, the Competent Authority included 19.89 hectares of land in the holding of the family of Dungaji and consequently by Order dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record. | 1 | 4,455 | 1,248 | ### 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:
dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record.
### Response:
1
### Explanation:
dated 18.05.1976 declared 57.32 acres of land as surplus land. It is not in dispute that the Order passed by the Competent Authority declaring the land as surplus land is subject to appeal and further revision as provided under the Act 1960 (Section 41 and 42 of the Act 1960). Section 46 of the Act 1960 provides that no Civil Court has jurisdiction to settle, decide or deal with any question which is by or under the Act 1960 required to be settled, decided or dealt with by the Competent Authority. Therefore, as per Section 46 of the Act 1960 there shall be a complete bar against maintainability of the suit challenging the decision of the Competent Authority. Despite the above and without preferring any appeal/revision as provided under the Act 1960 challenging the Order passed by the Competent Authority dated 18.05.1976, Dungaji filed the suit before the Civil Court praying for a declaration to declare the Order dated 18.05.1976 of the Competent Authority as null and void. Therefore, as such, considering the bar under Section 46 of the Act 1960, the suit filed by Dungaji challenging the Order dated 18.05.1976 passed by the Competent Authority, was not at all maintainable. It is true that in the suit the plaintiff also prayed for declaration to declare that the divorce had taken place between Dungaji and Kaveribai on the basis of the customary procedure. Therefore, as such, the suit qua the same relief can be said to be maintainable. But certainly, the suit challenging the Order passed by the Competent Authority dated 18.05.1976 was not maintainable at all. The view which we are taking is supported by the decisions of this Court in the case of Sooraj (supra); Mohanlal Nanbhai Choksi (Supra) and in the case of Dhulabhai (Supra). The decision of this Court in the case of Dhulabhai (Supra) relied upon by the learned Counsel appearing on behalf of the original plaintiffs, shall not be applicable to the facts of the case on hand and/or the same shall not be applicable to any reliefs sought in the suit. Therefore, in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the Order dated 18.05.1976 passed by the Competent Authority.8. Now, so far as the impugned Judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgment and Order in the Second Appeal under Section 100 of the CPC.9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.9.1 At this stage, it is required to be noted that before the Competent Authority, Kaveribai submitted the objections. Before the Competent Authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the Competent Authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the customs much prior to coming into force the Act of 1960. Therefore, as rightly observed by the learned Trial Court and the First Appellate Court only with a view to get out of the provisions of the Ceiling Act 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned Trial Court that Divorce Deed at Exhibit P5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the Courts below which were on appreciation of evidence on record.
|
Bhagwandas Goverdhandas Kedia Vs. M/S. Girdharilal Parshottamdas And Co. Andothers | but a different rule is made about acceptance. Communication of an acceptance is complete in two ways - (1) against the proposer when it is put in the course of transmission to him so as to be out of the power of the acceptor; and (2) as against the acceptor when it comes to the knowledge of the proposer. The theory of expedition which was explained above has been accepted. S.5 of the Contract Act next lays down that a proposal may be revoked at any time before the commutation of its acceptance is complete as against the proposer, but not afterwards and an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. In the third case in my above analysis this section is bound to furnish difficulties, if we were to accept that the contract is only complete at the proposers end. 34. The present is a case in which the proposer is claiming the benefit of the completion of the completion of the contract at Ahmedabad. To him the acceptor may say that the communication of the acceptance in so far as he was concerned was complete when he (the acceptor) put his acceptance in the course of transmission to him (the proposer) so as to be out of his (the acceptors) power to recall. It is obvious that the word of acceptance was spoken at Khamgaon and the moment the acceptor spoke his acceptance he put it in course of transmission to the proposer beyond his recall. He could not revoke his acceptance thereafter. I may be that the gap of time was so short that one can say that the speech was heard instantaneously, but if we are to put new inventions into the frame of our statutory law we are bound to say that the acceptor by speaking into the telephone put his acceptance in the course of transmission to the proper, however quick the transmission. What may be said in the English Common law, (which is capable of being moulded by judicial dicta,) we cannot always say under our statutory law because we have to guide ourselves by the language of the statute. It is contended that the communication of an acceptance is complete as against the acceptor when it comes to the knowledge of the proposer but that clause governs cases of acceptance lost through the fault of the acceptor. For example, the acceptor cannot be allowed to say that he shouted his acceptance and communication was complete where noise from an aircraft overhead drowned his words. As against him the communication can only be complete when it comes to the knowledge of the proposer. He must communicate his acceptance reasonably. Such is not the case here. Both sides admit that the acceptance was clearly heard at Ahmedabad. The acceptance was put in the course of transmission at Khamgaon and under the words of our statute I find it difficult to say that the contract was made at Ahmedabad where the acceptance was heard and not at Khamgaon where it was spoken. It is plain that the law was framed at a time when telephones, wireless, Tester and Early Bird were not contemplated. If time has marched inventions have made it easy to communicate instantaneously over Lougl distance and the language of our law does not fit the new conditions it can be modified to reject the old principles. But we cannot go against the language by accepting an interpretation given without considering the language of our Act. 35. In my opinion, the language of S. 4 of the Indian Contract Act covers the case of communication over the telephone. Our Act does not provide separately for post, telegraph, telephone or wireless. Some of these were unknown in 1872 and no attempt has been made to modify the law. It may be presumed that the language has been considered adequate to cover cases of these new inventions. Even, the Court of Appeal decision is of 1955. It is possible today not only to speak on the telephone but to record the spoken words on a tape and it is easy to prove that a particular conversation took place. Telephones now have television added to them. The rule about lost letters of acceptance was made out of expediency because it was easier in commercial circles to prove the despatch of the letters but very difficult to disprove the denial that the letter was received. If the rule suggested is accepted it would put a very powerful defence in the hands of the proposer if his denial that he heard the speech could take away the implications of our law that acceptance is complete as soon as it is put in course of transmission to the proposer. 36. No doubt the authority of the Entores case, 1955 (2) QB 327, is there and Lord Denning recommended an uniform rule, perhaps as laid down by the Court of Appeal. But the Court of Appeal was not called upon to construe a written law which brings in the inflexibility of its own language. It was not required to construe the words : "The communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor." 37. Regard being had to the words of our statute I am compelled to hold that the contract was complete at Khamgaon. It may be pointed out that the same result obtains in the conflict of laws as understood in America and quite a number of other countries such as Canada, France, etc. also apply the rule which I have enunciated above even though there is no compulsion of any statute. I have, therefore, less hesitation in propounding the view which I have attempted to set down here. 38. In the result I would allow the appeal with costs. | 0[ds]13. It appears that in a large majority of European countries the rule based on the theory of consensus idem, is that a contract takes place where the acceptance of the offer is communicated to the offeror, and no distinction is made between contracts made by post or telegraph and by telephone or Telex. In decisions of the State Courts in the United States, conflicting views have been expressed, buy the generally accepted view is that by "the technical law of contracts the contract is made in the district where the acceptance is spoken". This is based on what is called "the deeply rooted principle of common law that where the parties impliedly or expressly authorise a particular channel of communication, acceptance is effective when and where it enters that channel of communication". In the text books there is no reference to any decision of the Supreme Court of the United States of America on this question : American Jurisprudence, 2nd Edn., Vol. 17, Art. 54, p. 392 and Williston on Contracts, 3rd Edn., Vol. 1, p. 27114. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation between parties separated in space, and could not have intended to make any rule in that behalf.The question then is whether the ordinary rule which regards a contract as completed only when acceptance is intimated should apply, or whether the exception engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to beaccepted.If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable14. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation between parties separated in space, and could not have intended to make any rule in that behalf.The question then is whether the ordinary rule which regards a contract as completed only when acceptance is intimated should apply, or whether the exception engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to beaccepted.If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable15. The Trial Court was, therefore, right in the view which it has taken that a part of the cause of action arose within the jurisdiction of the City Civil Court, Ahmedabad, where acceptance was communicated by telephone to the plaintiffs. | 0 | 10,894 | 555 | ### 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:
but a different rule is made about acceptance. Communication of an acceptance is complete in two ways - (1) against the proposer when it is put in the course of transmission to him so as to be out of the power of the acceptor; and (2) as against the acceptor when it comes to the knowledge of the proposer. The theory of expedition which was explained above has been accepted. S.5 of the Contract Act next lays down that a proposal may be revoked at any time before the commutation of its acceptance is complete as against the proposer, but not afterwards and an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. In the third case in my above analysis this section is bound to furnish difficulties, if we were to accept that the contract is only complete at the proposers end. 34. The present is a case in which the proposer is claiming the benefit of the completion of the completion of the contract at Ahmedabad. To him the acceptor may say that the communication of the acceptance in so far as he was concerned was complete when he (the acceptor) put his acceptance in the course of transmission to him (the proposer) so as to be out of his (the acceptors) power to recall. It is obvious that the word of acceptance was spoken at Khamgaon and the moment the acceptor spoke his acceptance he put it in course of transmission to the proposer beyond his recall. He could not revoke his acceptance thereafter. I may be that the gap of time was so short that one can say that the speech was heard instantaneously, but if we are to put new inventions into the frame of our statutory law we are bound to say that the acceptor by speaking into the telephone put his acceptance in the course of transmission to the proper, however quick the transmission. What may be said in the English Common law, (which is capable of being moulded by judicial dicta,) we cannot always say under our statutory law because we have to guide ourselves by the language of the statute. It is contended that the communication of an acceptance is complete as against the acceptor when it comes to the knowledge of the proposer but that clause governs cases of acceptance lost through the fault of the acceptor. For example, the acceptor cannot be allowed to say that he shouted his acceptance and communication was complete where noise from an aircraft overhead drowned his words. As against him the communication can only be complete when it comes to the knowledge of the proposer. He must communicate his acceptance reasonably. Such is not the case here. Both sides admit that the acceptance was clearly heard at Ahmedabad. The acceptance was put in the course of transmission at Khamgaon and under the words of our statute I find it difficult to say that the contract was made at Ahmedabad where the acceptance was heard and not at Khamgaon where it was spoken. It is plain that the law was framed at a time when telephones, wireless, Tester and Early Bird were not contemplated. If time has marched inventions have made it easy to communicate instantaneously over Lougl distance and the language of our law does not fit the new conditions it can be modified to reject the old principles. But we cannot go against the language by accepting an interpretation given without considering the language of our Act. 35. In my opinion, the language of S. 4 of the Indian Contract Act covers the case of communication over the telephone. Our Act does not provide separately for post, telegraph, telephone or wireless. Some of these were unknown in 1872 and no attempt has been made to modify the law. It may be presumed that the language has been considered adequate to cover cases of these new inventions. Even, the Court of Appeal decision is of 1955. It is possible today not only to speak on the telephone but to record the spoken words on a tape and it is easy to prove that a particular conversation took place. Telephones now have television added to them. The rule about lost letters of acceptance was made out of expediency because it was easier in commercial circles to prove the despatch of the letters but very difficult to disprove the denial that the letter was received. If the rule suggested is accepted it would put a very powerful defence in the hands of the proposer if his denial that he heard the speech could take away the implications of our law that acceptance is complete as soon as it is put in course of transmission to the proposer. 36. No doubt the authority of the Entores case, 1955 (2) QB 327, is there and Lord Denning recommended an uniform rule, perhaps as laid down by the Court of Appeal. But the Court of Appeal was not called upon to construe a written law which brings in the inflexibility of its own language. It was not required to construe the words : "The communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor." 37. Regard being had to the words of our statute I am compelled to hold that the contract was complete at Khamgaon. It may be pointed out that the same result obtains in the conflict of laws as understood in America and quite a number of other countries such as Canada, France, etc. also apply the rule which I have enunciated above even though there is no compulsion of any statute. I have, therefore, less hesitation in propounding the view which I have attempted to set down here. 38. In the result I would allow the appeal with costs.
### Response:
0
### Explanation:
13. It appears that in a large majority of European countries the rule based on the theory of consensus idem, is that a contract takes place where the acceptance of the offer is communicated to the offeror, and no distinction is made between contracts made by post or telegraph and by telephone or Telex. In decisions of the State Courts in the United States, conflicting views have been expressed, buy the generally accepted view is that by "the technical law of contracts the contract is made in the district where the acceptance is spoken". This is based on what is called "the deeply rooted principle of common law that where the parties impliedly or expressly authorise a particular channel of communication, acceptance is effective when and where it enters that channel of communication". In the text books there is no reference to any decision of the Supreme Court of the United States of America on this question : American Jurisprudence, 2nd Edn., Vol. 17, Art. 54, p. 392 and Williston on Contracts, 3rd Edn., Vol. 1, p. 27114. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation between parties separated in space, and could not have intended to make any rule in that behalf.The question then is whether the ordinary rule which regards a contract as completed only when acceptance is intimated should apply, or whether the exception engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to beaccepted.If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable14. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation between parties separated in space, and could not have intended to make any rule in that behalf.The question then is whether the ordinary rule which regards a contract as completed only when acceptance is intimated should apply, or whether the exception engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to beaccepted.If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable15. The Trial Court was, therefore, right in the view which it has taken that a part of the cause of action arose within the jurisdiction of the City Civil Court, Ahmedabad, where acceptance was communicated by telephone to the plaintiffs.
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Gujarat State Transport Corporation, Etc Vs. Valji Mulji Soneji and Others | issued perior to the commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under s. 6 must be made within a period of two years whereafter as a necessary corollary all s. 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing s. 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of ss. 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note cou ld not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between s. 4 and s. 6 notifications because any declaration made after the expiry of a period of three years from the date on which s. 4 notification is issued would be invalid as being beyond the prescribed period.These newly inserted provisions were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under s. 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub-s. (2) s. 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under s. 6 on 10th October 1967, i.e. within the period prescribed by the statute. 8. The question then is: when a statute confers power and prescribes time within which it can be exercised, could it ever be said that even though the power is exercised within the statutory period yet the Court can examine the question of delay and record a finding that there was an unreasonable delay in exercise of the power and, therefore, the exercise of power is bad ? This approach would defeat the very purpose for prescribing a sort of a period of limitation on exercise of power. When a period is prescribed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time in heres a belief that the nature and quantum of power and the manner in which it is to b e exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within that time could not be negatived on the only ground of unreasonable delay. Therefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid.The High Court by implication read a fetter on the power of the Government to issue s. 6 notification withi n a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in the event of falling prices; history of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under s. 6 could be exercised it was not necessary to go in search of a further fetter on the power o f the Government by raising the implication. 9. It thus appears to be satisfactorily established that the impugned s. 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second s. 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to subscribe, it must be held t hat the second s. 6 notification dated 10th October 1967 is valid and legal. | 1[ds]A combined reading of the provisions contained in sub-s. (2) of s. 4 with the one contained in the proviso to sub-s. (1) of s. 6 introduced by the Amendment Act would clearly put an end to the unsatisfactory situation which troubled the High Court in this case. In view of the statutory provision noticed herein the Government would be precluded fr om making a declaration under s. 6 after the expiry of a period of three years from the date of the issue of a notification under s. 4 which may be issued after the Amendment Act came into force. And in respect of those s. 4 notifications which we re issued perior to the commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under s. 6 must be made within a period of two years whereafter as a necessary corollary all s. 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing s. 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of ss. 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note cou ld not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between s. 4 and s. 6 notifications because any declaration made after the expiry of a period of three years from the date on which s. 4 notification is issued would be invalid as being beyond the prescribed period.These newly inserted provisions were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under s. 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub-s. (2) s. 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under s. 6 on 10th October 1967, i.e. within the period prescribed by the statuteTherefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid.The High Court by implication read a fetter on the power of the Government to issue s. 6 notification withi n a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in the event of falling prices; history of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under s. 6 could be exercised it was not necessary to go in search of a further fetter on the power o f the Government by raising the implicationIt thus appears to be satisfactorily established that the impugned s. 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second s. 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to subscribe, it must be held t hat the second s. 6 notification dated 10th October 1967 is valid and legal. | 1 | 5,672 | 943 | ### 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:
issued perior to the commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under s. 6 must be made within a period of two years whereafter as a necessary corollary all s. 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing s. 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of ss. 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note cou ld not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between s. 4 and s. 6 notifications because any declaration made after the expiry of a period of three years from the date on which s. 4 notification is issued would be invalid as being beyond the prescribed period.These newly inserted provisions were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under s. 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub-s. (2) s. 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under s. 6 on 10th October 1967, i.e. within the period prescribed by the statute. 8. The question then is: when a statute confers power and prescribes time within which it can be exercised, could it ever be said that even though the power is exercised within the statutory period yet the Court can examine the question of delay and record a finding that there was an unreasonable delay in exercise of the power and, therefore, the exercise of power is bad ? This approach would defeat the very purpose for prescribing a sort of a period of limitation on exercise of power. When a period is prescribed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time in heres a belief that the nature and quantum of power and the manner in which it is to b e exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within that time could not be negatived on the only ground of unreasonable delay. Therefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid.The High Court by implication read a fetter on the power of the Government to issue s. 6 notification withi n a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in the event of falling prices; history of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under s. 6 could be exercised it was not necessary to go in search of a further fetter on the power o f the Government by raising the implication. 9. It thus appears to be satisfactorily established that the impugned s. 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second s. 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to subscribe, it must be held t hat the second s. 6 notification dated 10th October 1967 is valid and legal.
### Response:
1
### Explanation:
A combined reading of the provisions contained in sub-s. (2) of s. 4 with the one contained in the proviso to sub-s. (1) of s. 6 introduced by the Amendment Act would clearly put an end to the unsatisfactory situation which troubled the High Court in this case. In view of the statutory provision noticed herein the Government would be precluded fr om making a declaration under s. 6 after the expiry of a period of three years from the date of the issue of a notification under s. 4 which may be issued after the Amendment Act came into force. And in respect of those s. 4 notifications which we re issued perior to the commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under s. 6 must be made within a period of two years whereafter as a necessary corollary all s. 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing s. 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of ss. 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note cou ld not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between s. 4 and s. 6 notifications because any declaration made after the expiry of a period of three years from the date on which s. 4 notification is issued would be invalid as being beyond the prescribed period.These newly inserted provisions were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under s. 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub-s. (2) s. 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under s. 6 on 10th October 1967, i.e. within the period prescribed by the statuteTherefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid.The High Court by implication read a fetter on the power of the Government to issue s. 6 notification withi n a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in the event of falling prices; history of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under s. 6 could be exercised it was not necessary to go in search of a further fetter on the power o f the Government by raising the implicationIt thus appears to be satisfactorily established that the impugned s. 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second s. 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to subscribe, it must be held t hat the second s. 6 notification dated 10th October 1967 is valid and legal.
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Prasadi Devi Vs. Nagar Palika Sawai Madhopur, (Now Nagar Parishad) | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed by the plaintiff against the final judgment and order dated 16.04.2015 passed by the High Court of Rajasthan at Jaipur in S.B. Civil Writ Petition No.4592 of 2014 whereby the High Court dismissed the writ petition filed by the appellant herein and affirmed the order of the Trial Court.3. It may not be necessary to set out the entire facts for the disposal of the appeal in detail except to state those facts, which are necessary to appreciate the short issue raised in the appeal. This is because the learned counsel for the appellant (plaintiff) has made a statement at the Bar, which we are inclined to accept. Learned counsel for the respondent(defendant) has no objection to the statement made by learned counsel for the appellant and indeed rightly.4. The appellant (plaintiff) has filed a civil suit being civil suit No.248 of 1983 (re-numbered as C.S. No.40/2013) in the Court of Civil Judge, Sawai Madhopur against the respondent (defendant). The suit relates to a plot of land situated at Mantown in village Alampur in Sawai Madhopur (hereinafter referred to as the "suit land"). The suit is filed for permanent injunction restraining the respondent(defendant)-Nagar Palika, Sawai Madhopur from interfering in the appellants possession over the suit land and also for an injunction restraining the respondent from creating any third party rights in the suit land to the detriment of the appellants interest in the suit land.5. The respondent(defendant) is contesting the suit and has filed their written statement. The case is pending for recording of the evidence of the parties.6. The appellant is an illiterate old lady in her early eighties. She had executed a General Power of Attorney(GPA) in favour of one Mr. Gajanand Goyal and wanted to examine the Power of Attorney Holder in support of her case. The respondent before the Trial Court opposed this prayer which was upheld by the Trial Court.7. The appellant felt aggrieved of the Trial Courts order and filed writ petition under Article 227 of the Constitution of India in the High Court Bench at Jaipur. By impugned judgment, the High Court dismissed the appellants writ petition and affirmed the Trial Courts order. It is against this judgment, the plaintiff felt aggrieved and filed this appeal by way of special leave in this Court.8. Heard Mr. Sushil Kumar Jain, learned senior counsel for the appellant and Mr. Shiv Mangal, learned counsel for the respondent.9. Mr. Sushil Kumar Jain, learned senior counsel for the appellant (plaintiff) stated that the appellant, instead of examining her Power of Attorney Holder, would personally appear to give her evidence in support of her case.10. In view of this statement now having been made by the learned counsel for the appellant (plaintiff), it is not necessary to examine the legality and correctness of the impugned judgment on its merits. | 1[ds]10. In view of this statement now having been made by the learned counsel for the appellant (plaintiff), it is not necessary to examine the legality and correctness of the impugned judgment on its merits. | 1 | 544 | 44 | ### 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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Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed by the plaintiff against the final judgment and order dated 16.04.2015 passed by the High Court of Rajasthan at Jaipur in S.B. Civil Writ Petition No.4592 of 2014 whereby the High Court dismissed the writ petition filed by the appellant herein and affirmed the order of the Trial Court.3. It may not be necessary to set out the entire facts for the disposal of the appeal in detail except to state those facts, which are necessary to appreciate the short issue raised in the appeal. This is because the learned counsel for the appellant (plaintiff) has made a statement at the Bar, which we are inclined to accept. Learned counsel for the respondent(defendant) has no objection to the statement made by learned counsel for the appellant and indeed rightly.4. The appellant (plaintiff) has filed a civil suit being civil suit No.248 of 1983 (re-numbered as C.S. No.40/2013) in the Court of Civil Judge, Sawai Madhopur against the respondent (defendant). The suit relates to a plot of land situated at Mantown in village Alampur in Sawai Madhopur (hereinafter referred to as the "suit land"). The suit is filed for permanent injunction restraining the respondent(defendant)-Nagar Palika, Sawai Madhopur from interfering in the appellants possession over the suit land and also for an injunction restraining the respondent from creating any third party rights in the suit land to the detriment of the appellants interest in the suit land.5. The respondent(defendant) is contesting the suit and has filed their written statement. The case is pending for recording of the evidence of the parties.6. The appellant is an illiterate old lady in her early eighties. She had executed a General Power of Attorney(GPA) in favour of one Mr. Gajanand Goyal and wanted to examine the Power of Attorney Holder in support of her case. The respondent before the Trial Court opposed this prayer which was upheld by the Trial Court.7. The appellant felt aggrieved of the Trial Courts order and filed writ petition under Article 227 of the Constitution of India in the High Court Bench at Jaipur. By impugned judgment, the High Court dismissed the appellants writ petition and affirmed the Trial Courts order. It is against this judgment, the plaintiff felt aggrieved and filed this appeal by way of special leave in this Court.8. Heard Mr. Sushil Kumar Jain, learned senior counsel for the appellant and Mr. Shiv Mangal, learned counsel for the respondent.9. Mr. Sushil Kumar Jain, learned senior counsel for the appellant (plaintiff) stated that the appellant, instead of examining her Power of Attorney Holder, would personally appear to give her evidence in support of her case.10. In view of this statement now having been made by the learned counsel for the appellant (plaintiff), it is not necessary to examine the legality and correctness of the impugned judgment on its merits.
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1
### Explanation:
10. In view of this statement now having been made by the learned counsel for the appellant (plaintiff), it is not necessary to examine the legality and correctness of the impugned judgment on its merits.
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Rupa Roy Vs. The New India Assurance Company Ltd. & Anr | by the Motor Accident Claims Tribunal & District Judge, Nadia in M.A.C. Case No.3 of 2005. 3. A few facts need to be mentioned hereinbelow for the disposal of this appeal, which involves a short point. 4. The appellant is the claimant (applicant) and the respondents are the non-applicants in the claim petition filed before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) out of which this appeal arises. 5. On 19.07.2004, when the appellant with her husband and minor son – Sourangshu was going towards Gachha Bazar Bus Stoppage on a rickshaw van, one Matador van bearing No. WB 57/5270 came on a high speed from opposite side and dashed the rickshaw van as a result of which all the occupants of the rickshaw van suffered serious injuries 6. The appellants minor son-Sourangshu aged around 10 years, who was travelling with the appellant-his mother, suffered multiple injuries on his body. He was taken to the hospital where he received the treatment for a long time. After treatment, it was certified that he was Orthopedically disabled with post-traumatic paraplegia and weakness in his right hand. The permanent disability in his body was diagnosed to the extent of 70% due to injuries caused to him in the accident. 7. This gave rise to filing of the claim petition by the appellant against the respondents, i.e., owner/driver and insurer of the offending vehicle under Section 166 of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) claiming compensation for the disabilities caused to her son due to injuries. 8. It was inter alia alleged that the accident occurred due to rash and negligent driving of the driver/owner of the offending vehicle-respondent No. 2 and that it was insured with respondent No. 1 on the date of accident. It was alleged that due to permanent disability suffered by the appellants son, the appellant is entitled to claim suitable compensation for him. 9. The respondents contested the claim. By award dated 16.02.2008, the Tribunal partly allowed the appellants claim petition and awarded a compensation of Rs. 2,00,000/- to the appellant. The appellant felt aggrieved and filed an appeal before the High Court at Calcutta. By impugned order, the High Court dismissed the appeal which gives rise to filing of the present appeal by way of special leave by the appellant (claimant) in this Court. 10. Heard Mr. Rauf Rahim, learned counsel for the appellant and Mr. A. Jain, learned counsel for respondent No.1. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. 12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads as under: We have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal. 13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal. 14. An appeal filed under Section 173 of the Act is akin to Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code). The scope of the appellate powers under Section 173 of the Act, how such powers should be exercised while hearing the appeal and why it is necessary for the Courts to assign the reasons for reaching to the conclusion while passing any order/judgment was examined by this Court in the case of Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors., (2016) 4 SCC 172 , G. Saraswathi & Ors. vs. Rathinammal & Ors., (2018) 3 SCC 340 and Central Board of Trustees vs. Indore Composite Pvt. Ltd., (2018) 8 SCC 443. 15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to him. 16. Therefore, the only question, which is involved in this appeal, is whether the Courts below were justified in awarding a sum of Rs.2,00,000/- to the appellant(claimant) for the injuries sustained by her minor son. So far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it. 17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue. 18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably. | 1[ds]12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads asWe have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to himSo far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. | 1 | 1,172 | 457 | ### Instruction:
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by the Motor Accident Claims Tribunal & District Judge, Nadia in M.A.C. Case No.3 of 2005. 3. A few facts need to be mentioned hereinbelow for the disposal of this appeal, which involves a short point. 4. The appellant is the claimant (applicant) and the respondents are the non-applicants in the claim petition filed before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) out of which this appeal arises. 5. On 19.07.2004, when the appellant with her husband and minor son – Sourangshu was going towards Gachha Bazar Bus Stoppage on a rickshaw van, one Matador van bearing No. WB 57/5270 came on a high speed from opposite side and dashed the rickshaw van as a result of which all the occupants of the rickshaw van suffered serious injuries 6. The appellants minor son-Sourangshu aged around 10 years, who was travelling with the appellant-his mother, suffered multiple injuries on his body. He was taken to the hospital where he received the treatment for a long time. After treatment, it was certified that he was Orthopedically disabled with post-traumatic paraplegia and weakness in his right hand. The permanent disability in his body was diagnosed to the extent of 70% due to injuries caused to him in the accident. 7. This gave rise to filing of the claim petition by the appellant against the respondents, i.e., owner/driver and insurer of the offending vehicle under Section 166 of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) claiming compensation for the disabilities caused to her son due to injuries. 8. It was inter alia alleged that the accident occurred due to rash and negligent driving of the driver/owner of the offending vehicle-respondent No. 2 and that it was insured with respondent No. 1 on the date of accident. It was alleged that due to permanent disability suffered by the appellants son, the appellant is entitled to claim suitable compensation for him. 9. The respondents contested the claim. By award dated 16.02.2008, the Tribunal partly allowed the appellants claim petition and awarded a compensation of Rs. 2,00,000/- to the appellant. The appellant felt aggrieved and filed an appeal before the High Court at Calcutta. By impugned order, the High Court dismissed the appeal which gives rise to filing of the present appeal by way of special leave by the appellant (claimant) in this Court. 10. Heard Mr. Rauf Rahim, learned counsel for the appellant and Mr. A. Jain, learned counsel for respondent No.1. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. 12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads as under: We have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal. 13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal. 14. An appeal filed under Section 173 of the Act is akin to Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code). The scope of the appellate powers under Section 173 of the Act, how such powers should be exercised while hearing the appeal and why it is necessary for the Courts to assign the reasons for reaching to the conclusion while passing any order/judgment was examined by this Court in the case of Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors., (2016) 4 SCC 172 , G. Saraswathi & Ors. vs. Rathinammal & Ors., (2018) 3 SCC 340 and Central Board of Trustees vs. Indore Composite Pvt. Ltd., (2018) 8 SCC 443. 15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to him. 16. Therefore, the only question, which is involved in this appeal, is whether the Courts below were justified in awarding a sum of Rs.2,00,000/- to the appellant(claimant) for the injuries sustained by her minor son. So far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it. 17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue. 18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably.
### Response:
1
### Explanation:
12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads asWe have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to himSo far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant.
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Commissioner of Income Tax Vs. United Trading and Construction Company | 1. M. N. Sharma, advocate. On the death of the said advocate notice was sent to the respondent apprising him of the said fact and asking him to make alternate arrangement. The letter has come back with the endorsement "left". This was in January, 1995. We treat it as sufficient service and proceed with the matter. 2. This appeal is preferred against the order of the Delhi High Court rejecting the application of the Revenue filed under section 256(2) of the Income-tax Act, 1961. The question which the Revenue wanted to be referred by the Tribunal reads thus : "Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the cash credit amounting to Rs. 25, 000 stood explained in view of the disclosure made by the creditors under section 24 of the Finance (No. 2) Act of 1965 ?Is the order of the Income-tax Appellate Tribunal not vitiated in view of the provisions of section 68 of the Income-tax Act, 1961 ?" * 3. It is now brought to our notice that this very question has since been decided by this court in ITO v. Rattan Lal 1984 (145) ITR 183. In the said decision it has been held that the immunity enjoyed by a declarant under section 24 of the Finance (No. 2) Act, 1965, under the Voluntary Disclosure Scheme is confined to the declarant alone and is not extended to the assessment of a third party assessee in relation to the income disclosed by the declarant. It was further held that there is nothing in section 24 of the Finance (No. 2) Act which prevents the Income-tax Officer, if he is not satisfied with the explanation of the assessee about the genuineness of sources of amounts found credited in his books to add them to the assessees income amount in spite of these having already been made the subject-matter of the declaration made by the depositors/creditors. He is entitled to include them as income of the assessee from undisclosed sources. 4. | 1[ds]It is now brought to our notice that this very question has since been decided by this court in ITO v. Rattan Lal 1984 (145) ITR 183. In the said decision it has been held that the immunity enjoyed by a declarant under section 24 of the Finance (No. 2) Act, 1965, under the Voluntary Disclosure Scheme is confined to the declarant alone and is not extended to the assessment of a third party assessee in relation to the income disclosed by the declarant. It was further held that there is nothing in section 24 of the Finance (No. 2) Act which prevents theOfficer, if he is not satisfied with the explanation of the assessee about the genuineness of sources of amounts found credited in his books to add them to the assessees income amount in spite of these having already been made theof the declaration made by the depositors/creditors. He is entitled to include them as income of the assessee from undisclosed sources. | 1 | 387 | 183 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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1. M. N. Sharma, advocate. On the death of the said advocate notice was sent to the respondent apprising him of the said fact and asking him to make alternate arrangement. The letter has come back with the endorsement "left". This was in January, 1995. We treat it as sufficient service and proceed with the matter. 2. This appeal is preferred against the order of the Delhi High Court rejecting the application of the Revenue filed under section 256(2) of the Income-tax Act, 1961. The question which the Revenue wanted to be referred by the Tribunal reads thus : "Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the cash credit amounting to Rs. 25, 000 stood explained in view of the disclosure made by the creditors under section 24 of the Finance (No. 2) Act of 1965 ?Is the order of the Income-tax Appellate Tribunal not vitiated in view of the provisions of section 68 of the Income-tax Act, 1961 ?" * 3. It is now brought to our notice that this very question has since been decided by this court in ITO v. Rattan Lal 1984 (145) ITR 183. In the said decision it has been held that the immunity enjoyed by a declarant under section 24 of the Finance (No. 2) Act, 1965, under the Voluntary Disclosure Scheme is confined to the declarant alone and is not extended to the assessment of a third party assessee in relation to the income disclosed by the declarant. It was further held that there is nothing in section 24 of the Finance (No. 2) Act which prevents the Income-tax Officer, if he is not satisfied with the explanation of the assessee about the genuineness of sources of amounts found credited in his books to add them to the assessees income amount in spite of these having already been made the subject-matter of the declaration made by the depositors/creditors. He is entitled to include them as income of the assessee from undisclosed sources. 4.
### Response:
1
### Explanation:
It is now brought to our notice that this very question has since been decided by this court in ITO v. Rattan Lal 1984 (145) ITR 183. In the said decision it has been held that the immunity enjoyed by a declarant under section 24 of the Finance (No. 2) Act, 1965, under the Voluntary Disclosure Scheme is confined to the declarant alone and is not extended to the assessment of a third party assessee in relation to the income disclosed by the declarant. It was further held that there is nothing in section 24 of the Finance (No. 2) Act which prevents theOfficer, if he is not satisfied with the explanation of the assessee about the genuineness of sources of amounts found credited in his books to add them to the assessees income amount in spite of these having already been made theof the declaration made by the depositors/creditors. He is entitled to include them as income of the assessee from undisclosed sources.
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Ghanshyam Vs. State Of M.P. | prosecutor himself has made reference to the Government letter, the copy of which has been filed on record and having perused it, I am satisfied that letter is only advisory in character and there is nothing to show that the Public Prosecutor was directed by the Government to move for withdrawal. A fair reading of the application for withdrawal shows that the Prosecutor applied his mind before moving the Court for withdrawal as he has so stated in the application, that :- In the totality of the circumstances and in the interest of general public, I deem it proper and necessary that the prosecution be withdrawn from the Court. Therefore, he made the prayer for the Courts consent. From the above it is clear that the Prosecutor applied his mind to the issue, considered all the circumstances and came to the conclusion that prosecution be sought to be withdrawn, notwithstanding, that an accused has been a Member of Parliament, i.e., a peoples representative." 13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are as under: "There are social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution." 14. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations. 15. The appellant aggrieved by the order by which the courts approval was granted for withdrawal of the prosecution, preferred a criminal revision petition in the High Court. The High Court by a detailed and comprehensive judgment on 28.9.1991 dismissed the revision petition. The said judgment of the High Court became final and binding on the parties because the appellant had never challenged that judgment. In other words, the appellant had no further surviving grievance against respondent no.3. 16. It is relevant to mention that only when respondent no.3, Surya Prasad filed a writ petition in the High Court in the year 2004 in which he had complained of inaction on the part of the police authorities in not registering a case against the accused who had caused serious injuries to him and his sons, the High Court on the basis of the report of the Deputy Director General, Intelligence of the Central Intelligence Department, Gwalior, M.P. and averments incorporated in the writ petition, directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law. 17. The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay. 19. The appellant urged that the High Court did not consider the incident which had taken place in the year 1986 in the proper perspective. He also contended that respondent no.3 himself was involved in a case emanating from the FIR No. 654 of 1986 under Section 307 I.P.C. registered against the respondent. In the backdrop of the case, according to the appellant, the impugned order of the High Court is unsustainable.20. It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court. 21. It may be pertinent to mention that the order of the High Court was primarily based on the report of the DIG, CID, Gwalior who had conducted the inquiry at the instance of the Court and submitted the report. On the basis of the inquiry report, the High Court directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law. | 0[ds]13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are asare social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution.The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations.The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay.It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court. | 0 | 2,671 | 532 | ### Instruction:
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prosecutor himself has made reference to the Government letter, the copy of which has been filed on record and having perused it, I am satisfied that letter is only advisory in character and there is nothing to show that the Public Prosecutor was directed by the Government to move for withdrawal. A fair reading of the application for withdrawal shows that the Prosecutor applied his mind before moving the Court for withdrawal as he has so stated in the application, that :- In the totality of the circumstances and in the interest of general public, I deem it proper and necessary that the prosecution be withdrawn from the Court. Therefore, he made the prayer for the Courts consent. From the above it is clear that the Prosecutor applied his mind to the issue, considered all the circumstances and came to the conclusion that prosecution be sought to be withdrawn, notwithstanding, that an accused has been a Member of Parliament, i.e., a peoples representative." 13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are as under: "There are social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution." 14. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations. 15. The appellant aggrieved by the order by which the courts approval was granted for withdrawal of the prosecution, preferred a criminal revision petition in the High Court. The High Court by a detailed and comprehensive judgment on 28.9.1991 dismissed the revision petition. The said judgment of the High Court became final and binding on the parties because the appellant had never challenged that judgment. In other words, the appellant had no further surviving grievance against respondent no.3. 16. It is relevant to mention that only when respondent no.3, Surya Prasad filed a writ petition in the High Court in the year 2004 in which he had complained of inaction on the part of the police authorities in not registering a case against the accused who had caused serious injuries to him and his sons, the High Court on the basis of the report of the Deputy Director General, Intelligence of the Central Intelligence Department, Gwalior, M.P. and averments incorporated in the writ petition, directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law. 17. The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay. 19. The appellant urged that the High Court did not consider the incident which had taken place in the year 1986 in the proper perspective. He also contended that respondent no.3 himself was involved in a case emanating from the FIR No. 654 of 1986 under Section 307 I.P.C. registered against the respondent. In the backdrop of the case, according to the appellant, the impugned order of the High Court is unsustainable.20. It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court. 21. It may be pertinent to mention that the order of the High Court was primarily based on the report of the DIG, CID, Gwalior who had conducted the inquiry at the instance of the Court and submitted the report. On the basis of the inquiry report, the High Court directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law.
### Response:
0
### Explanation:
13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are asare social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution.The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations.The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay.It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court.
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Rohtas Industries Ltd Vs. Ramlakhan Singh And Ors | and establishment and includes apprentice, but does not include a member of the employers family. It also includes persons employed in a factory who are not workers within the meaning of the Factories Act, 1948 (LXIII of 1948) and who are not working in managerial capacity, and for the purposes of any proceeding under this Act, include an employee who has been dismissed, discharged or retrenched for any reason whatsoever". On a plain reading on the definition aforesaid, it follows that even persons employed in a factory by the inclusive clause in the second sentence of the definition are employees within the meaning of the Bihar Act. But two exceptions have been carved out from the category of such persons, namely, (1) "who are not workers within the meaning of the Factories Act"; such a worker does not come within the inclusive definition of term "employee"; (2) who are not working in managerial capacity. In other words, even a person employed in a factory and who is not a worker within the meaning of the Factories Act will not be an employee under S.2(4) of the Bihar Act if he is working in a managerial capacity. It is not disputed that the second exception was not attracted in this case. The respondent was not working in a managerial capacity. He was employed in the Paper Factory. But the only question for determination is whether he was a worker within the meaning of the Factories Act. 5. For the purpose of deciding the point at issue, it is necessary to refer to certain provisions of the Factories Act as they stood at the relevant time before the Factories Amendment Act, 1976. The title and the preamble of the Act would show that this is an Act "to consolidate and amend the law regulating labour in factories". Clause (1) of S. 2 runs as follows :"worker means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process". The definition of "factory" given in cl. (m) starts by saying that it "means any premises including the precincts thereof. Manufacturing process has been defined in cl. (k) to mean any process for - (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adopting any article or substance with a view to its use, sale, transport, delivery or disposal, or Reading these provisions together, it is quite reasonable and legitimate to hold that a person to be a worker within the meaning of the Factories Act must be a person employed in the premises or the precincts of the factory. As held by this Court in State of Uttar Pradesh v. M. P. Singh and others, (1960) 2 S.C.R. 605, field workers who are employed in guiding, supervision and controlling the growth and supply of sugarcane to be used in the factory are not employed either in the precincts of the factory or in the premises of the factory. Hence the provision of the Factories Act do not apply to them. 6. According to the finding of the Labour Court, the respondent was engaged in supervising and checking quality and weighment of waste papers and rags which are the basic raw-materials for the manufacture of Duplex Board and Vulcanised fibre. He used to deal with receipts and maintain records of stocks. He also used to pass the bills of the suppliers of the waste paper and rags and used to check the quality of the supplies. The respondent had admitted that he used to work in the precincts of the factory and in case of necessities had to work inside the factory. He used to go to the paper sorting house when there were instructions for it. But thinking that a checking of rags and their quality was not the main duty of the respondent, the Court came to the conclusion that his work was not incidental to manufacturing process. The High Court thought that the Labour Court had found as a fact that the respondent was not concerned with the manufacturing of paper either directly or incidentally and hence he was not a factory worker. In our opinion, the judgments of the Courts below in this regard cannot be sustained. 7. The respondent was not employed "in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process". But the question for consideration is whether he was employed in "any other kind of work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process". This Court in State of U.P. v. M. P. Singh (supra) did not decide as to what was the precise meaning of the expression "subject of the manufacturing process" in S.2 cl. (1) of the Factories Act. We are called upon to decide this question in this appeal. Raw material used in the manufacturing process for producing paper and its various products, undoubtedly, will be a "subject of the manufacturing process, " whatever else may or may not be such subject. If that be so, the respondent was engaged in a work which was connected with the subject of the manufacturing process. And as we see the evidence discussed in the order of the Labour Court, there cannot be any doubt that he was working in the factory premises or its precincts in connection with the work of the subject of the manufacturing process, namely, the raw materials. In our judgment, therefore, he was factory worker within the meaning of cl. (1) of S.2 of the Factories Act, 1948. Hence he was not an employee within the meaning of the Bihar Act and the petition of complaint filed by him under S. 26(2) was not maintainable. | 1[ds]6. According to the finding of the Labour Court, the respondent was engaged in supervising and checking quality and weighment of waste papers and rags which are the basic raw-materials for the manufacture of Duplex Board and Vulcanised fibre. He used to deal with receipts and maintain records of stocks. He also used to pass the bills of the suppliers of the waste paper and rags and used to check the quality of the supplies. The respondent had admitted that he used to work in the precincts of the factory and in case of necessities had to work inside the factory. He used to go to the paper sorting house when there were instructions for it. But thinking that a checking of rags and their quality was not the main duty of the respondent, the Court came to the conclusion that his work was not incidental to manufacturing process. The High Court thought that the Labour Court had found as a fact that the respondent was not concerned with the manufacturing of paper either directly or incidentally and hence he was not a factory worker. In our opinion, the judgments of the Courts below in this regard cannot be sustained7. The respondent was not employed "in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process". But the question for consideration is whether he was employed in "any other kind of work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process". This Court in State of U.P. v. M. P. Singh (supra) did not decide as to what was the precise meaning of the expression "subject of the manufacturing process" in S.2 cl. (1) of the Factories Act. We are called upon to decide this question in this appeal. Raw material used in the manufacturing process for producing paper and its various products, undoubtedly, will be a "subject of the manufacturing process, " whatever else may or may not be such subject. If that be so, the respondent was engaged in a work which was connected with the subject of the manufacturing process. And as we see the evidence discussed in the order of the Labour Court, there cannot be any doubt that he was working in the factory premises or its precincts in connection with the work of the subject of the manufacturing process, namely, the raw materials. In our judgment, therefore, he was factory worker within the meaning of cl. (1) of S.2 of the Factories Act, 1948. Hence he was not an employee within the meaning of the Bihar Act and the petition of complaint filed by him under S. 26(2) was not maintainable3. We need not discuss or decide the merits of the respective cases of the parties, as in our opinion, the application filed by the respondent under S.26(2) of the Bihar Act was not maintainable4. Only a person who is an employee under S.2(4) of the Bihar Act could file an application under S. 26(2). If he was not such an employee, he had no right to file the complaint. | 1 | 1,749 | 593 | ### 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:
and establishment and includes apprentice, but does not include a member of the employers family. It also includes persons employed in a factory who are not workers within the meaning of the Factories Act, 1948 (LXIII of 1948) and who are not working in managerial capacity, and for the purposes of any proceeding under this Act, include an employee who has been dismissed, discharged or retrenched for any reason whatsoever". On a plain reading on the definition aforesaid, it follows that even persons employed in a factory by the inclusive clause in the second sentence of the definition are employees within the meaning of the Bihar Act. But two exceptions have been carved out from the category of such persons, namely, (1) "who are not workers within the meaning of the Factories Act"; such a worker does not come within the inclusive definition of term "employee"; (2) who are not working in managerial capacity. In other words, even a person employed in a factory and who is not a worker within the meaning of the Factories Act will not be an employee under S.2(4) of the Bihar Act if he is working in a managerial capacity. It is not disputed that the second exception was not attracted in this case. The respondent was not working in a managerial capacity. He was employed in the Paper Factory. But the only question for determination is whether he was a worker within the meaning of the Factories Act. 5. For the purpose of deciding the point at issue, it is necessary to refer to certain provisions of the Factories Act as they stood at the relevant time before the Factories Amendment Act, 1976. The title and the preamble of the Act would show that this is an Act "to consolidate and amend the law regulating labour in factories". Clause (1) of S. 2 runs as follows :"worker means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process". The definition of "factory" given in cl. (m) starts by saying that it "means any premises including the precincts thereof. Manufacturing process has been defined in cl. (k) to mean any process for - (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adopting any article or substance with a view to its use, sale, transport, delivery or disposal, or Reading these provisions together, it is quite reasonable and legitimate to hold that a person to be a worker within the meaning of the Factories Act must be a person employed in the premises or the precincts of the factory. As held by this Court in State of Uttar Pradesh v. M. P. Singh and others, (1960) 2 S.C.R. 605, field workers who are employed in guiding, supervision and controlling the growth and supply of sugarcane to be used in the factory are not employed either in the precincts of the factory or in the premises of the factory. Hence the provision of the Factories Act do not apply to them. 6. According to the finding of the Labour Court, the respondent was engaged in supervising and checking quality and weighment of waste papers and rags which are the basic raw-materials for the manufacture of Duplex Board and Vulcanised fibre. He used to deal with receipts and maintain records of stocks. He also used to pass the bills of the suppliers of the waste paper and rags and used to check the quality of the supplies. The respondent had admitted that he used to work in the precincts of the factory and in case of necessities had to work inside the factory. He used to go to the paper sorting house when there were instructions for it. But thinking that a checking of rags and their quality was not the main duty of the respondent, the Court came to the conclusion that his work was not incidental to manufacturing process. The High Court thought that the Labour Court had found as a fact that the respondent was not concerned with the manufacturing of paper either directly or incidentally and hence he was not a factory worker. In our opinion, the judgments of the Courts below in this regard cannot be sustained. 7. The respondent was not employed "in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process". But the question for consideration is whether he was employed in "any other kind of work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process". This Court in State of U.P. v. M. P. Singh (supra) did not decide as to what was the precise meaning of the expression "subject of the manufacturing process" in S.2 cl. (1) of the Factories Act. We are called upon to decide this question in this appeal. Raw material used in the manufacturing process for producing paper and its various products, undoubtedly, will be a "subject of the manufacturing process, " whatever else may or may not be such subject. If that be so, the respondent was engaged in a work which was connected with the subject of the manufacturing process. And as we see the evidence discussed in the order of the Labour Court, there cannot be any doubt that he was working in the factory premises or its precincts in connection with the work of the subject of the manufacturing process, namely, the raw materials. In our judgment, therefore, he was factory worker within the meaning of cl. (1) of S.2 of the Factories Act, 1948. Hence he was not an employee within the meaning of the Bihar Act and the petition of complaint filed by him under S. 26(2) was not maintainable.
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### Explanation:
6. According to the finding of the Labour Court, the respondent was engaged in supervising and checking quality and weighment of waste papers and rags which are the basic raw-materials for the manufacture of Duplex Board and Vulcanised fibre. He used to deal with receipts and maintain records of stocks. He also used to pass the bills of the suppliers of the waste paper and rags and used to check the quality of the supplies. The respondent had admitted that he used to work in the precincts of the factory and in case of necessities had to work inside the factory. He used to go to the paper sorting house when there were instructions for it. But thinking that a checking of rags and their quality was not the main duty of the respondent, the Court came to the conclusion that his work was not incidental to manufacturing process. The High Court thought that the Labour Court had found as a fact that the respondent was not concerned with the manufacturing of paper either directly or incidentally and hence he was not a factory worker. In our opinion, the judgments of the Courts below in this regard cannot be sustained7. The respondent was not employed "in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process". But the question for consideration is whether he was employed in "any other kind of work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process". This Court in State of U.P. v. M. P. Singh (supra) did not decide as to what was the precise meaning of the expression "subject of the manufacturing process" in S.2 cl. (1) of the Factories Act. We are called upon to decide this question in this appeal. Raw material used in the manufacturing process for producing paper and its various products, undoubtedly, will be a "subject of the manufacturing process, " whatever else may or may not be such subject. If that be so, the respondent was engaged in a work which was connected with the subject of the manufacturing process. And as we see the evidence discussed in the order of the Labour Court, there cannot be any doubt that he was working in the factory premises or its precincts in connection with the work of the subject of the manufacturing process, namely, the raw materials. In our judgment, therefore, he was factory worker within the meaning of cl. (1) of S.2 of the Factories Act, 1948. Hence he was not an employee within the meaning of the Bihar Act and the petition of complaint filed by him under S. 26(2) was not maintainable3. We need not discuss or decide the merits of the respective cases of the parties, as in our opinion, the application filed by the respondent under S.26(2) of the Bihar Act was not maintainable4. Only a person who is an employee under S.2(4) of the Bihar Act could file an application under S. 26(2). If he was not such an employee, he had no right to file the complaint.
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M.M. Aqua Technologies Ltd Vs. Commissioner of Income Tax, Delhi-III | treated as moneys set apart to meet a known liability. The debentures will have to be shown in the Companys balance sheet of the year as liability. 11. In the case of CIT v. Peico Electronics & Electricals [(1987) 166 ITR 299 (Cal) ] the Calcutta High Court held that the Debenture Redemption Reserve will have to be treated as a reserve and not provision because, none of the debentures became redeemable during the accounting period. The liability to redeem the debenture was a future liability. The debentures had been separately shown in the balance sheet as a liability. The reserve had been created by appropriation of profits and not by way of a charge on revenue. 12. We are of the view that this approach is erroneous and overlooks the definitions of provision and reserve given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading liabilities. Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans was an existing liability and has to be shown in the Companys balance sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be reserve. The interpretation clause of the balance sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability. 27. The question decided in this case is far removed from the question to be decided in the facts of the present case and has no application to these facts whatsoever. The question in the present case does not depend upon what can, in law, be stated to be a debenture and/or whether it is convertible or non-convertible or payable immediately or in the future. The question in the present case is only whether interest can be said to have been actually paid by the mode of issuing debentures. To answer this question, this judgment has no relevance. 28. The learned ASG then relied upon a recent judgment of this Court in CIT v. Gujarat Cypromet Ltd. (supra). In the said case, a Division Bench of this Court, while dealing with Section 43B Explanation 3C, noted the facts as found by the CIT as follows (para 5): 2.2. I have perused the case laws cited and also the above sanction letter from IDBI and also the auditors note referred by the assessing officer. I have perused Schedule 3 of the balance sheet as on 31-3-2001 and find that the above loan appears as on 31-3-2001 and is part of the total secured loans of Rs 75,26,10,769. The fact that the entry pertaining to the interest element outstanding to financial institutions referred at page 2 of the order by the assessing officer has been reversed after receipt of funds of Rs 8 crores from IDBI substantiates the contention of the appellant company that the entries relating to interest outstanding with reference the above institutions have been squared up and its place a new credit entry of loan of IDBI is now appearing in the balance sheet as on 31-3-2001. The plea of the appellants counsel Shri Tanna that since no interest payment is outstanding now and the amount is paid off, the expenditure of interest is allowable under Section 43-B. It is further added that in case the loan had been disbursed in 2 parts — one to meet the interest outstanding and the balance for financial assistance still the entries in the books of account would have remain the same and the outstanding interest would have been NIL. Having regard to the above facts and also the case laws cited by the appellants representative, I am inclined to hold that the disallowance made by the assessing officer is contrary to the substance of the transaction and the provisions of Section 43-B of the Income Tax Act and the same cannot be sustained and therefore directed to be deleted. 29. It is on these facts that Explanation 3C was pressed into service in favour of Revenue and paras 11 and 12 of the impugned judgment in the present case were referred to, in passing, in para 13. Ultimately, this Court concluded: 16. In the impugned judgment [CIT v. Gujarat Cypromet Ltd., 2006 SCC OnLine Guj 560], the Gujarat High Court has relied upon CIT v. Bhagwati Autocast Ltd., 2002 SCC OnLine Guj 381 which was not a case covered by Section 43-B(d) rather was a case of Section 43-B(a). The provision of Section 43- B covers a host of different situations. The statutory Explanation 3-C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3- C, we are, thus, of the view that the assessing officer has rightly disallowed the deduction as claimed by the assessee. The appellate authority, ITAT and the High Court erred in reversing the said disallowance. 30. On the facts of that case, this Court found that Explanation 3C was squarely attracted in that outstanding interest had not actually been paid, but instead a new credit entry of loan now appeared, bringing the case within the express language of Explanation 3C. This is far removed from the facts of the present case, which were not adverted to at all in this judgment. Consequently, this judgment is also distinguishable and would not apply to govern the facts of the present case. | 1[ds]20. This being the case, it is important to advert to the facts found in the present case. Both the CIT and the ITAT found, as a matter of fact, that as per a rehabilitation plan agreed to between the lender and the borrower, debentures were accepted by the financial institution in discharge of the debt on account of outstanding interest. This is also clear from the expression in lieu of used in the judgment of the learned CIT. That this is so is clear not only from the accounts produced by the assessee, but equally clear from the fact that in the assessment of ICICI Bank, for the assessment year in question, the accounts of the bank reflect the amount received by way of debentures as its business income. This being the fact-situation in the present case, it is clear that interest was actually paid by means of issuance of debentures, which extinguished the liability to pay interest.21. Explanation 3C, which was introduced for the removal of doubts, only made it clear that interest that remained unpaid and has been converted into a loan or borrowing shall not be deemed to have been actually paid. As has been seen by us hereinabove, particularly with regard to the Circular explaining Explanation 3C, at the heart of the introduction of Explanation 3C is misuse of the provisions of Section 43B by not actually paying interest, but converting such interest into a fresh loan. On the facts found in the present case, the issue of debentures by the assessee was, under a rehabilitation plan, to extinguish the liability of interest altogether. No misuse of the provision of Section 43B was found as a matter of fact by either the CIT or the ITAT. Explanation 3C, which was meant to plug a loophole, cannot therefore be brought to the aid of Revenue on the facts of this case. Indeed, if there be any ambiguity in the retrospectively added Explanation 3C, at least three well established canons of interpretation come to the rescue of the assessee in this case. First, since Explanation 3C was added in 2006 with the object of plugging a loophole – i.e. misusing Section 43B by not actually paying interest but converting interest into a fresh loan, bona fide transactions of actual payments are not meant to be affected. In similar circumstances, in K.P. Varghese v. ITO, (1981) 4 SCC 173 , this Court construed Section 52 of the Income Tax Act as applying only to cases where understatement is be found – an understatement is not to be found in the literal language of Section 52, but was introduced by this Court to streamline the provision in the light of the object sought to be achieved by the said provision. This Court, therefore, held:13. Thus it is not enough to attract the applicability of sub- section (2) that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceeds the full value of the consideration declared in respect of the transfer by not less than 15 per cent of the value so declared, but it is furthermore necessary that the full value of the consideration in respect of the transfer is understated or in other words, shown at a lesser figure than that actually received by the assessee. Sub-section (2) has no application in case of an honest and bona fide transaction where the consideration in respect of the transfer has been correctly declared or disclosed by the assessee, even if the condition of 15 per cent difference between the fair market value of the capital asset as on the date of the transfer and the full value of the consideration declared by the assessee is satisfied. ….15. It is therefore clear that sub-section (2) cannot be invoked by the Revenue unless there is understatement of the consideration in respect of the transfer and the burden of showing that there is such understatement is on the Revenue. Once it is established by the Revenue that the consideration for the transfer has been understated or, to put it differently, the consideration actually received by the assessee is more than what is declared or disclosed by him, sub-section (2) is immediately attracted, subject of course to the fulfilment of the condition of 15 per cent or more difference, and the Revenue is then not required to show what is the precise extent of the understatement or in other words, what is the consideration actually received by the assessee. That would in most cases be difficult, if not impossible, to show and hence sub-section (2) relieves the Revenue of all burden of proof regarding the extent of understatement or concealment and provides a statutory measure of the consideration received in respect of the transfer. It does not create any fictional receipt. It does not deem as receipt something which is not in fact received. It merely provides a statutory best judgment assessment of the consideration actually received by the assessee and brings to tax capital gains on the footing that the fair market value of the capital asset represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him. This approach in construction of sub-section (2) falls in line with the scheme of the provisions relating to tax on capital gains. It may be noted that Section 52 is not a charging section but is a computation section. It has to be read along with Section 48 which provides the mode of computation and under which the starting point of computation is the full value of the consideration received or accruing. What in fact never accrued or was never received cannot be computed as capital gains under Section 48. Therefore sub-section (2) cannot be construed as bringing within the computation of capital gains an amount which, by no stretch of imagination, can be said to have accrued to the assessee or been received by him and it must be confined to cases where the actual consideration received for the transfer is understated and since in such cases it is very difficult, if not impossible, to determine and prove the exact quantum of the suppressed consideration, sub-section (2) provides the statutory measure for determining the consideration actually received by the assessee and permits the Revenue to take the fair market value of the capital asset as the full value of the consideration received in respect of the transfer.22. Second, a retrospective provision in a tax act which is for the removal of doubts cannot be presumed to be retrospective, even where such language is used, if it alters or changes the law as it earlier stood. This was stated in Sedco Forex International Drill. Inc. v. CIT, (2005) 12 SCC 717 as follows:17. As was affirmed by this Court in Goslino Mario [(2000) 10 SCC 165] a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT [(1980) 1 SCC 139] .) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section [See Sonia Bhatia v. State of U.P., (1981) 2 SCC 585 , 598] . If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force [See Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24 ( para 44); Brij Mohan Das Laxman Das v. CIT, (1997) 1 SCC 352 , 354 ; CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482 , 506] . But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are it is declared or for the removal of doubts.18. There was and is no ambiguity in the main provision of Section 9(1)(ii). It includes salaries in the total income of an assessee if the assessee has earned it in India. The word earned had been judicially defined in S.G. Pgnatale [(1980) 124 ITR 391 (Guj)] by the High Court of Gujarat, in our view, correctly, to mean as income arising or accruing in India. The amendment to the section by way of an Explanation in 1983 effected a change in the scope of that judicial definition so as to include with effect from 1979, income payable for service rendered in India.19. When the Explanation seeks to give an artificial meaning to earned in India and brings about a change effectively in the existing law and in addition is stated to come into force with effect from a future date, there is no principle of interpretation which would justify reading the Explanation as operating retrospectively.23. This being the case, Explanation 3C is clarificatory – it explains Section 43B(d) as it originally stood and does not purport to add a new condition retrospectively, as has wrongly been held by the High Court.24. Third, any ambiguity in the language of Explanation 3C shall be resolved in favour of the assessee as per Cape Brandy Syndicate v. Inland Revenue Commissioner (supra) as followed by judgments of this Court – See Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 at paras 60 to 70 per Kapadia, C.J. and para 333, 334 per Radhakrishnan, J.25. The High Court judgment dated 18th May, 2015, is clearly in error in concluding that interest, on the facts of this case, has been converted into a loan. There is no basis for this finding - as a matter of fact, it is directly contrary to the finding on facts of the authorities below.26. The learned ASGs reliance on National Rayon Corpn. Ltd. v. CIT, (1997) 7 SCC 56 is disingenuous. That was a decision which turned on whether a sum of Rs.79 lakhs represents Debenture Redemption Reserve and was includible in computing the capital of the assessee company for the purpose of the Companies (Profits) Surtax Act, 1964. The High Court took the view that the amount set apart to redeem debentures had to be treated as a provision and not as a reserve. While discussing this question, this Court held :8. Mr Ramachandran advanced another argument that there was no present liability to pay any amount to the debenture- holders. That liability will arise only when the amount falls due for payment. Therefore, there was no existing liability for redeeming the debentures in the relevant year of account.9. We are unable to uphold this argument. The liability to repay arises the moment the money is borrowed. The amount borrowed may be repayable immediately or in future. The date of repayment of loan may be deferred by agreement but the obligation or the liability to repay will not cease on that account. The obligation is a present obligation; debitum in praesenti, solvendum in futuro. This aspect of the matter was explained in the judgment of this Court in Kesoram Industries and Cotton Mills Ltd. v. CWT [AIR 1966 SC 1370 : (1966) 59 ITR 767 ] .10. By issuing the debentures, the Company had taken a loan against the security of its assets. This loan may not be repayable in the year of account. But the obligation to pay the loan is a present obligation. Any money set apart in the accounts of the Company to redeem the debentures must be treated as moneys set apart to meet a known liability. The debentures will have to be shown in the Companys balance sheet of the year as liability.11. In the case of CIT v. Peico Electronics & Electricals [(1987) 166 ITR 299 (Cal) ] the Calcutta High Court held that the Debenture Redemption Reserve will have to be treated as a reserve and not provision because, none of the debentures became redeemable during the accounting period. The liability to redeem the debenture was a future liability. The debentures had been separately shown in the balance sheet as a liability. The reserve had been created by appropriation of profits and not by way of a charge on revenue.12. We are of the view that this approach is erroneous and overlooks the definitions of provision and reserve given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading liabilities. Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans was an existing liability and has to be shown in the Companys balance sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be reserve. The interpretation clause of the balance sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability.27. The question decided in this case is far removed from the question to be decided in the facts of the present case and has no application to these facts whatsoever. The question in the present case does not depend upon what can, in law, be stated to be a debenture and/or whether it is convertible or non-convertible or payable immediately or in the future.The question in the present case is only whether interest can be said to have been actually paid by the mode of issuing debentures.To answer this question, this judgment has no relevance.CIT v. Gujarat Cypromet Ltd. (supra).In the said case, a Division Bench of this Court, while dealing with Section 43B Explanation 3C, noted the facts as found by the CIT as follows (para 5):2.2. I have perused the case laws cited and also the above sanction letter from IDBI and also the auditors note referred by the assessing officer. I have perused Schedule 3 of the balance sheet as on 31-3-2001 and find that the above loan appears as on 31-3-2001 and is part of the total secured loans of Rs 75,26,10,769. The fact that the entry pertaining to the interest element outstanding to financial institutions referred at page 2 of the order by the assessing officer has been reversed after receipt of funds of Rs 8 crores from IDBI substantiates the contention of the appellant company that the entries relating to interest outstanding with reference the above institutions have been squared up and its place a new credit entry of loan of IDBI is now appearing in the balance sheet as on 31-3-2001. The plea of the appellants counsel Shri Tanna that since no interest payment is outstanding now and the amount is paid off, the expenditure of interest is allowable under Section 43-B. It is further added that in case the loan had been disbursed in 2 parts — one to meet the interest outstanding and the balance for financial assistance still the entries in the books of account would have remain the same and the outstanding interest would have been NIL. Having regard to the above facts and also the case laws cited by the appellants representative, I am inclined to hold that the disallowance made by the assessing officer is contrary to the substance of the transaction and the provisions of Section 43-B of the Income Tax Act and the same cannot be sustained and therefore directed to be deleted.29. It is on these facts that Explanation 3C was pressed into service in favour of Revenue and paras 11 and 12 of the impugned judgment in the present case were referred to, in passing, in para 13. Ultimately, this Court concluded:16. In the impugned judgment [CIT v. Gujarat Cypromet Ltd., 2006 SCC OnLine Guj 560], the Gujarat High Court has relied upon CIT v. Bhagwati Autocast Ltd., 2002 SCC OnLine Guj 381 which was not a case covered by Section 43-B(d) rather was a case of Section 43-B(a). The provision of Section 43- B covers a host of different situations. The statutory Explanation 3-C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3- C, we are, thus, of the view that the assessing officer has rightly disallowed the deduction as claimed by the assessee. The appellate authority, ITAT and the High Court erred in reversing the said disallowance.30. On the facts of that case, this Court found that Explanation 3C was squarely attracted in that outstanding interest had not actually been paid, but instead a new credit entry of loan now appeared, bringing the case within the express language of Explanation 3C. This is far removed from the facts of the present case, which were not adverted to at all in this judgment. Consequently, this judgment is also distinguishable and would not apply to govern the facts of the present case. | 1 | 7,440 | 3,228 | ### Instruction:
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treated as moneys set apart to meet a known liability. The debentures will have to be shown in the Companys balance sheet of the year as liability. 11. In the case of CIT v. Peico Electronics & Electricals [(1987) 166 ITR 299 (Cal) ] the Calcutta High Court held that the Debenture Redemption Reserve will have to be treated as a reserve and not provision because, none of the debentures became redeemable during the accounting period. The liability to redeem the debenture was a future liability. The debentures had been separately shown in the balance sheet as a liability. The reserve had been created by appropriation of profits and not by way of a charge on revenue. 12. We are of the view that this approach is erroneous and overlooks the definitions of provision and reserve given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading liabilities. Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans was an existing liability and has to be shown in the Companys balance sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be reserve. The interpretation clause of the balance sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability. 27. The question decided in this case is far removed from the question to be decided in the facts of the present case and has no application to these facts whatsoever. The question in the present case does not depend upon what can, in law, be stated to be a debenture and/or whether it is convertible or non-convertible or payable immediately or in the future. The question in the present case is only whether interest can be said to have been actually paid by the mode of issuing debentures. To answer this question, this judgment has no relevance. 28. The learned ASG then relied upon a recent judgment of this Court in CIT v. Gujarat Cypromet Ltd. (supra). In the said case, a Division Bench of this Court, while dealing with Section 43B Explanation 3C, noted the facts as found by the CIT as follows (para 5): 2.2. I have perused the case laws cited and also the above sanction letter from IDBI and also the auditors note referred by the assessing officer. I have perused Schedule 3 of the balance sheet as on 31-3-2001 and find that the above loan appears as on 31-3-2001 and is part of the total secured loans of Rs 75,26,10,769. The fact that the entry pertaining to the interest element outstanding to financial institutions referred at page 2 of the order by the assessing officer has been reversed after receipt of funds of Rs 8 crores from IDBI substantiates the contention of the appellant company that the entries relating to interest outstanding with reference the above institutions have been squared up and its place a new credit entry of loan of IDBI is now appearing in the balance sheet as on 31-3-2001. The plea of the appellants counsel Shri Tanna that since no interest payment is outstanding now and the amount is paid off, the expenditure of interest is allowable under Section 43-B. It is further added that in case the loan had been disbursed in 2 parts — one to meet the interest outstanding and the balance for financial assistance still the entries in the books of account would have remain the same and the outstanding interest would have been NIL. Having regard to the above facts and also the case laws cited by the appellants representative, I am inclined to hold that the disallowance made by the assessing officer is contrary to the substance of the transaction and the provisions of Section 43-B of the Income Tax Act and the same cannot be sustained and therefore directed to be deleted. 29. It is on these facts that Explanation 3C was pressed into service in favour of Revenue and paras 11 and 12 of the impugned judgment in the present case were referred to, in passing, in para 13. Ultimately, this Court concluded: 16. In the impugned judgment [CIT v. Gujarat Cypromet Ltd., 2006 SCC OnLine Guj 560], the Gujarat High Court has relied upon CIT v. Bhagwati Autocast Ltd., 2002 SCC OnLine Guj 381 which was not a case covered by Section 43-B(d) rather was a case of Section 43-B(a). The provision of Section 43- B covers a host of different situations. The statutory Explanation 3-C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3- C, we are, thus, of the view that the assessing officer has rightly disallowed the deduction as claimed by the assessee. The appellate authority, ITAT and the High Court erred in reversing the said disallowance. 30. On the facts of that case, this Court found that Explanation 3C was squarely attracted in that outstanding interest had not actually been paid, but instead a new credit entry of loan now appeared, bringing the case within the express language of Explanation 3C. This is far removed from the facts of the present case, which were not adverted to at all in this judgment. Consequently, this judgment is also distinguishable and would not apply to govern the facts of the present case.
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to pay the loan is a present obligation. Any money set apart in the accounts of the Company to redeem the debentures must be treated as moneys set apart to meet a known liability. The debentures will have to be shown in the Companys balance sheet of the year as liability.11. In the case of CIT v. Peico Electronics & Electricals [(1987) 166 ITR 299 (Cal) ] the Calcutta High Court held that the Debenture Redemption Reserve will have to be treated as a reserve and not provision because, none of the debentures became redeemable during the accounting period. The liability to redeem the debenture was a future liability. The debentures had been separately shown in the balance sheet as a liability. The reserve had been created by appropriation of profits and not by way of a charge on revenue.12. We are of the view that this approach is erroneous and overlooks the definitions of provision and reserve given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading liabilities. Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans was an existing liability and has to be shown in the Companys balance sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be reserve. The interpretation clause of the balance sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability.27. The question decided in this case is far removed from the question to be decided in the facts of the present case and has no application to these facts whatsoever. The question in the present case does not depend upon what can, in law, be stated to be a debenture and/or whether it is convertible or non-convertible or payable immediately or in the future.The question in the present case is only whether interest can be said to have been actually paid by the mode of issuing debentures.To answer this question, this judgment has no relevance.CIT v. Gujarat Cypromet Ltd. (supra).In the said case, a Division Bench of this Court, while dealing with Section 43B Explanation 3C, noted the facts as found by the CIT as follows (para 5):2.2. I have perused the case laws cited and also the above sanction letter from IDBI and also the auditors note referred by the assessing officer. I have perused Schedule 3 of the balance sheet as on 31-3-2001 and find that the above loan appears as on 31-3-2001 and is part of the total secured loans of Rs 75,26,10,769. The fact that the entry pertaining to the interest element outstanding to financial institutions referred at page 2 of the order by the assessing officer has been reversed after receipt of funds of Rs 8 crores from IDBI substantiates the contention of the appellant company that the entries relating to interest outstanding with reference the above institutions have been squared up and its place a new credit entry of loan of IDBI is now appearing in the balance sheet as on 31-3-2001. The plea of the appellants counsel Shri Tanna that since no interest payment is outstanding now and the amount is paid off, the expenditure of interest is allowable under Section 43-B. It is further added that in case the loan had been disbursed in 2 parts — one to meet the interest outstanding and the balance for financial assistance still the entries in the books of account would have remain the same and the outstanding interest would have been NIL. Having regard to the above facts and also the case laws cited by the appellants representative, I am inclined to hold that the disallowance made by the assessing officer is contrary to the substance of the transaction and the provisions of Section 43-B of the Income Tax Act and the same cannot be sustained and therefore directed to be deleted.29. It is on these facts that Explanation 3C was pressed into service in favour of Revenue and paras 11 and 12 of the impugned judgment in the present case were referred to, in passing, in para 13. Ultimately, this Court concluded:16. In the impugned judgment [CIT v. Gujarat Cypromet Ltd., 2006 SCC OnLine Guj 560], the Gujarat High Court has relied upon CIT v. Bhagwati Autocast Ltd., 2002 SCC OnLine Guj 381 which was not a case covered by Section 43-B(d) rather was a case of Section 43-B(a). The provision of Section 43- B covers a host of different situations. The statutory Explanation 3-C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3- C, we are, thus, of the view that the assessing officer has rightly disallowed the deduction as claimed by the assessee. The appellate authority, ITAT and the High Court erred in reversing the said disallowance.30. On the facts of that case, this Court found that Explanation 3C was squarely attracted in that outstanding interest had not actually been paid, but instead a new credit entry of loan now appeared, bringing the case within the express language of Explanation 3C. This is far removed from the facts of the present case, which were not adverted to at all in this judgment. Consequently, this judgment is also distinguishable and would not apply to govern the facts of the present case.
|
The Management of the Trichinopoly Mills Ltd Vs. The National Cotton Textile Mill Workers' Union & Others | Appellate Tribunal has pointed out, when the dispute about the bonus for the year 1950 was pending between the parties, the appellant itself had suggested that the said dispute should be decided after the earlier dispute for the year 1948 which was then pending before the Labour Appellate Tribunal was finally determined, and it was conceded that the final decision in respect of the said earlier dispute would facilitate the decision of the dispute then pending. Besides, it appears that in dealing with the dispute for the year 1948 the appellate tribunal had accepted the statement for the first time submitted before it showing the appellants claim for rehabilitation at Rs. 1,75,000 and it was not clear that the respondents had a chance to examine the correctness of the said figure. If on these considerations the appellate tribunal preferred to accept the view taken in the dispute for the year 1950 we do not see how that can justify the grievance made by the appellant before us in an appeal under Art. 136. Therefore, we are not inclined to interfere with the direction of the Labour Appellant Tribunal that in respect of rehabilitation and replacement charges the appellant is entitled to claim Rs. 66,948 and not Rs. 1,61,780. In regard to replacement and rehabilitation charges for buildings there is no dispute between the parties. 5. The next question which falls to be considered is whether on the findings recorded by it the Labour Appellate Tribunal was justified in allowing eight months basic wages by way of bonus to the respondents. The result of these findings is that the initial available surplus is Rs. 6,65,963/- After making deductions in respect of the favour prior changes the amount available for distribution comes to Rs. 2,22,473/- Out of this amount the Labour Appellate Tribunal has directed Rs. 1,28,000/- to be distributed among the respondents by way of bonus leaving a balance of Rs. 94,473/- with the appellant. To this amount must be added the rebate of income-tax to which the appellant would be entitled by virtue of the grant of bonus. This amount is Rs. 59,714/-. Thus in the result the appellant is left with Rs. 1,54,187/-.Mr. Sastri contends that the award of eight months bonus is unreasonably high and should be reduced.. It is true that the respondents had claimed bonus for six months but this claim was made on the assumption that the calculation of bonus would be made on the footing of basic wages plus dearness allowance. Therefore it cannot be said that the Labour Appellant Tribunal has given to the respondents more than they claimed.Mr. Sastri contends and with some force that in making the actual direction about the payment of bonus the Labour appellant Tribunal has given no reasons, and so it is difficult to decide whether in distributing the surplus it was conscious that in the available surplus three claims have to be adjusted, the claim of the employer, the claim of the shareholders and the claim of labour. There is also some force in the argument that an award of eight months basic wages by way of bonus when the available surplus is less than Rs. 3,00,000/- is somewhat unusual. Besides Mr. Sastri has laid considerable emphasis on the decision of the Labour appellate Tribunal in Mettur Industries Ltd. v. Their Workmen, 1957-2 Lab LJ 490 in support of his contention that one of the members of the Labour Appellant Tribunal which had decided the present dispute had in substance explained the present decision on the ground that some of the relevant considerations had not been pressed before the Labour Appellate Tribunal when it decided the present dispute. There is no doubt that there are certain observations made in the decision of the Mettur Industries 1957-2. Lab LJ 490, on which Mr. Sastri is entitled to rely and it may, therefore, be conceded that the award of eight months bonus may perhaps have been made without taking into account all relevant factors; but the question still remains as to what order we can make in the present appeal. As we have recently pointed out in the case of Associated Cement Companies Limited Dwarka v.Its Workmen, 1959 SCR 925 at p. 973 : (AIR 1959 SC 967 at p. 992), the distribution of the available surplus is determined in the light of several relevant fact; but unfortunately the record of the present appeal contains no material which would assist us in applying the tests laid down in that behalf. Therefore it would be difficult for us to decide what should be the proper amount of bonus to which the respondents are entitled in the present dispute.If as Mr. Sastri contends, the decision of the Labour Appellate Tribunal does not disclose the reasons on which the distribution is ordered, how can we substitute the said order of distribution by any other order without the assistance of relevant material?Under the circumstances all that we can do is to direct that the present award should not be treated as a precedent in deciding similar disputes between the parties in future. The quantum of bonus to be paid to workmen in any dispute of this kind must inevitably depend on the facts of each case.In the present proceedings proper and adequate evidence had not been led. There is no doubt that, when the Labour Appellate Tribunal reduced the amount of rehabilitation and replacement from Rs. 1,61,780 as ordered by the tribunal to Rs. 66,948, a case was obviously made for increasing the award of bonus to an amount higher than 4 months basic wages granted under the award. Whether the increase should have been to six months basic wages or seven months or eight months is a matter on which it is difficult for us to pronounce a judgment having regard to the paucity of the relevant material available on the record. That is why we think the appellant is not entitled to ask us to alter the award in question. | 0[ds]It is now well settled that the employer has to prove by satisfactory evidence the particular claim he wishes to make under the head of rehabilitation and replacement charges. There is no doubt that no satisfactory evidence has been led in the present proceedings. It is true that Mr. H. Srinivasa Rao, the Secretary of the appellant, has made some statements in respect of this claim in hisbut they are wholly insufficient to assist in deciding the merits of the appellants claim for rehabilitation. The witness stated that the present cost of replacement of the machinery in the mills if replaced would be Rs. 16,65,000 c.i.f., and he added that the cost of the existing general machinery may be Rs. 22,00,000 while that of the existing electrical machinery may be about Rs.6,00,000. He also produced Ex.which contains the quotations received by the appellant in 1950.It would be noticed that the witness gave no evidence about the probable life of the machinery and about its condition during the relevant year. Unless satisfactory evidence is given on this point it would be impossible to make any finding as to the rehabilitation charges on the materials given by the witness.Therefore, it is not possible to accede to the argument that the evidence of this witness affords a legal and reliable basis for dealing with the point in dispute.That takes us to the question as to which of the two previous decisions should be treated as affording more satisfactory assistance.As we have already indicated the tribunal and the Labour Appellate Tribunal have differed on this point.Apart from the fact that on such a point we would be reluctant to interfere with the decision of the Labour Appellate Tribunal, even if we were inclined to prefer the view of the tribunal, on the merits we do not see how the view taken by the Labour Appellate Tribunal can be successfully challenged. It is not denied that the principles of res judicata cannot be strictly invoked in the decisions of such points though it is equally true that industrial tribunals would not be justified in changing the amounts of rehabilitation from year to year without sufficient cause.As the Labour Appellate Tribunal has pointed out, when the dispute about the bonus for the year 1950 was pending between the parties, the appellant itself had suggested that the said dispute should be decided after the earlier dispute for the year 1948 which was then pending before the Labour Appellate Tribunal was finally determined, and it was conceded that the final decision in respect of the said earlier dispute would facilitate the decision of the dispute then pending. Besides, it appears that in dealing with the dispute for the year 1948 the appellate tribunal had accepted the statement for the first time submitted before it showing the appellants claim for rehabilitation at Rs. 1,75,000 and it was not clear that the respondents had a chance to examine the correctness of the said figure. If on these considerations the appellate tribunal preferred to accept the view taken in the dispute for the year 1950 we do not see how that can justify the grievance made by the appellant before us in an appeal under Art. 136. Therefore, we are not inclined to interfere with the direction of the Labour Appellant Tribunal that in respect of rehabilitation and replacement charges the appellant is entitled to claim Rs. 66,948 and not Rs. 1,61,780. In regard to replacement and rehabilitation charges for buildings there is no dispute between theis true that the respondents had claimed bonus for six months but this claim was made on the assumption that the calculation of bonus would be made on the footing of basic wages plus dearness allowance. Therefore it cannot be said that the Labour Appellant Tribunal has given to the respondents more than theyis no doubt that there are certain observations made in the decision of the Mettur IndustriesLab LJ 490, on which Mr. Sastri is entitled to rely and it may, therefore, be conceded that the award of eight months bonus may perhaps have been made without taking into account all relevant factors; but the question still remains as to what order we can make in the present appeal. As we have recently pointed out in the case of Associated Cement Companies Limited Dwarka v.Its Workmen, 1959 SCR 925 at p. 973 : (AIR 1959 SC 967 at p. 992), the distribution of the available surplus is determined in the light of several relevant fact; but unfortunately the record of the present appeal contains no material which would assist us in applying the tests laid down in that behalf. Therefore it would be difficult for us to decide what should be the proper amount of bonus to which the respondents are entitled in the present dispute.If as Mr. Sastri contends, the decision of the Labour Appellate Tribunal does not disclose the reasons on which the distribution is ordered, how can we substitute the said order of distribution by any other order without the assistance of relevant material?Under the circumstances all that we can do is to direct that the present award should not be treated as a precedent in deciding similar disputes between the parties in future. The quantum of bonus to be paid to workmen in any dispute of this kind must inevitably depend on the facts of each case.In the present proceedings proper and adequate evidence had not been led. There is no doubt that, when the Labour Appellate Tribunal reduced the amount of rehabilitation and replacement from Rs. 1,61,780 as ordered by the tribunal to Rs. 66,948, a case was obviously made for increasing the award of bonus to an amount higher than 4 months basic wages granted under the award. Whether the increase should have been to six months basic wages or seven months or eight months is a matter on which it is difficult for us to pronounce a judgment having regard to the paucity of the relevant material available on the record. That is why we think the appellant is not entitled to ask us to alter the award in question. | 0 | 1,905 | 1,081 | ### Instruction:
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Appellate Tribunal has pointed out, when the dispute about the bonus for the year 1950 was pending between the parties, the appellant itself had suggested that the said dispute should be decided after the earlier dispute for the year 1948 which was then pending before the Labour Appellate Tribunal was finally determined, and it was conceded that the final decision in respect of the said earlier dispute would facilitate the decision of the dispute then pending. Besides, it appears that in dealing with the dispute for the year 1948 the appellate tribunal had accepted the statement for the first time submitted before it showing the appellants claim for rehabilitation at Rs. 1,75,000 and it was not clear that the respondents had a chance to examine the correctness of the said figure. If on these considerations the appellate tribunal preferred to accept the view taken in the dispute for the year 1950 we do not see how that can justify the grievance made by the appellant before us in an appeal under Art. 136. Therefore, we are not inclined to interfere with the direction of the Labour Appellant Tribunal that in respect of rehabilitation and replacement charges the appellant is entitled to claim Rs. 66,948 and not Rs. 1,61,780. In regard to replacement and rehabilitation charges for buildings there is no dispute between the parties. 5. The next question which falls to be considered is whether on the findings recorded by it the Labour Appellate Tribunal was justified in allowing eight months basic wages by way of bonus to the respondents. The result of these findings is that the initial available surplus is Rs. 6,65,963/- After making deductions in respect of the favour prior changes the amount available for distribution comes to Rs. 2,22,473/- Out of this amount the Labour Appellate Tribunal has directed Rs. 1,28,000/- to be distributed among the respondents by way of bonus leaving a balance of Rs. 94,473/- with the appellant. To this amount must be added the rebate of income-tax to which the appellant would be entitled by virtue of the grant of bonus. This amount is Rs. 59,714/-. Thus in the result the appellant is left with Rs. 1,54,187/-.Mr. Sastri contends that the award of eight months bonus is unreasonably high and should be reduced.. It is true that the respondents had claimed bonus for six months but this claim was made on the assumption that the calculation of bonus would be made on the footing of basic wages plus dearness allowance. Therefore it cannot be said that the Labour Appellant Tribunal has given to the respondents more than they claimed.Mr. Sastri contends and with some force that in making the actual direction about the payment of bonus the Labour appellant Tribunal has given no reasons, and so it is difficult to decide whether in distributing the surplus it was conscious that in the available surplus three claims have to be adjusted, the claim of the employer, the claim of the shareholders and the claim of labour. There is also some force in the argument that an award of eight months basic wages by way of bonus when the available surplus is less than Rs. 3,00,000/- is somewhat unusual. Besides Mr. Sastri has laid considerable emphasis on the decision of the Labour appellate Tribunal in Mettur Industries Ltd. v. Their Workmen, 1957-2 Lab LJ 490 in support of his contention that one of the members of the Labour Appellant Tribunal which had decided the present dispute had in substance explained the present decision on the ground that some of the relevant considerations had not been pressed before the Labour Appellate Tribunal when it decided the present dispute. There is no doubt that there are certain observations made in the decision of the Mettur Industries 1957-2. Lab LJ 490, on which Mr. Sastri is entitled to rely and it may, therefore, be conceded that the award of eight months bonus may perhaps have been made without taking into account all relevant factors; but the question still remains as to what order we can make in the present appeal. As we have recently pointed out in the case of Associated Cement Companies Limited Dwarka v.Its Workmen, 1959 SCR 925 at p. 973 : (AIR 1959 SC 967 at p. 992), the distribution of the available surplus is determined in the light of several relevant fact; but unfortunately the record of the present appeal contains no material which would assist us in applying the tests laid down in that behalf. Therefore it would be difficult for us to decide what should be the proper amount of bonus to which the respondents are entitled in the present dispute.If as Mr. Sastri contends, the decision of the Labour Appellate Tribunal does not disclose the reasons on which the distribution is ordered, how can we substitute the said order of distribution by any other order without the assistance of relevant material?Under the circumstances all that we can do is to direct that the present award should not be treated as a precedent in deciding similar disputes between the parties in future. The quantum of bonus to be paid to workmen in any dispute of this kind must inevitably depend on the facts of each case.In the present proceedings proper and adequate evidence had not been led. There is no doubt that, when the Labour Appellate Tribunal reduced the amount of rehabilitation and replacement from Rs. 1,61,780 as ordered by the tribunal to Rs. 66,948, a case was obviously made for increasing the award of bonus to an amount higher than 4 months basic wages granted under the award. Whether the increase should have been to six months basic wages or seven months or eight months is a matter on which it is difficult for us to pronounce a judgment having regard to the paucity of the relevant material available on the record. That is why we think the appellant is not entitled to ask us to alter the award in question.
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### Explanation:
and replacement charges. There is no doubt that no satisfactory evidence has been led in the present proceedings. It is true that Mr. H. Srinivasa Rao, the Secretary of the appellant, has made some statements in respect of this claim in hisbut they are wholly insufficient to assist in deciding the merits of the appellants claim for rehabilitation. The witness stated that the present cost of replacement of the machinery in the mills if replaced would be Rs. 16,65,000 c.i.f., and he added that the cost of the existing general machinery may be Rs. 22,00,000 while that of the existing electrical machinery may be about Rs.6,00,000. He also produced Ex.which contains the quotations received by the appellant in 1950.It would be noticed that the witness gave no evidence about the probable life of the machinery and about its condition during the relevant year. Unless satisfactory evidence is given on this point it would be impossible to make any finding as to the rehabilitation charges on the materials given by the witness.Therefore, it is not possible to accede to the argument that the evidence of this witness affords a legal and reliable basis for dealing with the point in dispute.That takes us to the question as to which of the two previous decisions should be treated as affording more satisfactory assistance.As we have already indicated the tribunal and the Labour Appellate Tribunal have differed on this point.Apart from the fact that on such a point we would be reluctant to interfere with the decision of the Labour Appellate Tribunal, even if we were inclined to prefer the view of the tribunal, on the merits we do not see how the view taken by the Labour Appellate Tribunal can be successfully challenged. It is not denied that the principles of res judicata cannot be strictly invoked in the decisions of such points though it is equally true that industrial tribunals would not be justified in changing the amounts of rehabilitation from year to year without sufficient cause.As the Labour Appellate Tribunal has pointed out, when the dispute about the bonus for the year 1950 was pending between the parties, the appellant itself had suggested that the said dispute should be decided after the earlier dispute for the year 1948 which was then pending before the Labour Appellate Tribunal was finally determined, and it was conceded that the final decision in respect of the said earlier dispute would facilitate the decision of the dispute then pending. Besides, it appears that in dealing with the dispute for the year 1948 the appellate tribunal had accepted the statement for the first time submitted before it showing the appellants claim for rehabilitation at Rs. 1,75,000 and it was not clear that the respondents had a chance to examine the correctness of the said figure. If on these considerations the appellate tribunal preferred to accept the view taken in the dispute for the year 1950 we do not see how that can justify the grievance made by the appellant before us in an appeal under Art. 136. Therefore, we are not inclined to interfere with the direction of the Labour Appellant Tribunal that in respect of rehabilitation and replacement charges the appellant is entitled to claim Rs. 66,948 and not Rs. 1,61,780. In regard to replacement and rehabilitation charges for buildings there is no dispute between theis true that the respondents had claimed bonus for six months but this claim was made on the assumption that the calculation of bonus would be made on the footing of basic wages plus dearness allowance. Therefore it cannot be said that the Labour Appellant Tribunal has given to the respondents more than theyis no doubt that there are certain observations made in the decision of the Mettur IndustriesLab LJ 490, on which Mr. Sastri is entitled to rely and it may, therefore, be conceded that the award of eight months bonus may perhaps have been made without taking into account all relevant factors; but the question still remains as to what order we can make in the present appeal. As we have recently pointed out in the case of Associated Cement Companies Limited Dwarka v.Its Workmen, 1959 SCR 925 at p. 973 : (AIR 1959 SC 967 at p. 992), the distribution of the available surplus is determined in the light of several relevant fact; but unfortunately the record of the present appeal contains no material which would assist us in applying the tests laid down in that behalf. Therefore it would be difficult for us to decide what should be the proper amount of bonus to which the respondents are entitled in the present dispute.If as Mr. Sastri contends, the decision of the Labour Appellate Tribunal does not disclose the reasons on which the distribution is ordered, how can we substitute the said order of distribution by any other order without the assistance of relevant material?Under the circumstances all that we can do is to direct that the present award should not be treated as a precedent in deciding similar disputes between the parties in future. The quantum of bonus to be paid to workmen in any dispute of this kind must inevitably depend on the facts of each case.In the present proceedings proper and adequate evidence had not been led. There is no doubt that, when the Labour Appellate Tribunal reduced the amount of rehabilitation and replacement from Rs. 1,61,780 as ordered by the tribunal to Rs. 66,948, a case was obviously made for increasing the award of bonus to an amount higher than 4 months basic wages granted under the award. Whether the increase should have been to six months basic wages or seven months or eight months is a matter on which it is difficult for us to pronounce a judgment having regard to the paucity of the relevant material available on the record. That is why we think the appellant is not entitled to ask us to alter the award in question.
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ALLAHABAD BANK & ORS Vs. AVTAR BHUSHAN BHARTIYA | false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 . 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof. 33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184 may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same. 34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150 arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand. 35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184, this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80 and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case. 36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded. 37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed. | 0[ds]25. In the light of the aforesaid facts, no great deal of research was necessary on the part of the High Court to arrive at the conclusion that the Management of the Bank was clearly at fault. Therefore, the High Court allowed the writ petition. The operative portion of the impugned order is already extracted earlier.26. It is not as though the High Court proceeded solely on the basis of the failure of the Management to supply the copy of the enquiry report. The High Court found that the charges related to a Government sponsored Scheme and that the beneficiaries were identified and were short--listed by a Government agency, namely the District Rural Development Agency. The High Court also found that no bad motive was either attributed to the employee nor proved in the departmental proceedings.27. On the basis of the aforesaid findings, the High Court could have granted all the reliefs in full, including full back--wages. But considering the fact that from the date of his dismissal namely, 31.03.1989, upto the date of his superannuation on 28.02.2013, a period of nearly 24 years had passed, the High Court thought it fit to limit the back--wages to 50%. In such circumstances, we do not think that the Management can make out any grievance, especially (i) after having violated Regulation 9; (ii) after their failure to point out to the High Court in the first round of litigation that the copy of the enquiry report was not available; and (iii) after their inability to comply with the order of the High Court passed in the first round of litigation, which was also confirmed by this Court.28. Therefore, the Special Leave Petition filed by the Bank deserves to be dismissed.29. Having dealt with the SLP filed by the Management, let us now come to the SLP filed by the Officer--employee with regard to the grant of back wages only to the extent of 50%.30. The learned counsel for the Officer--employee places heavy reliance upon the decision of this Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors. (2013) 10 SCC 324, in support of his contention that the grant of full back wages is a normal rule in cases of wrongful termination of service.But the ratio laid down in the said decision cannot be pressed into service by the Officer--employee in this case. This is for the reason that the Officer--employee in this case was originally appointed as a Clerk way back in the year 1974. He was promoted to the post of Junior Management Grade--II in the year 1982 and as Branch Manager in the year 1987. This is why he was governed by the Allahabad Bank Officer Employees (Discipline and Appeal) Regulations, 1976. Courts should always keep in mind the different yardsticks to be applied in the cases of workman category employees and managerial category employees. In appropriate cases, the distinction between labour law and service law may also have to be kept in mind. Many times, Courts wrongly apply, in matters arising under service law, the principles laid down in matters arising under labour laws.31. As a matter of fact, the propositions elucidated in Deepali Gundu Surwase (supra), read as follows:-38. The propositions which can be culled out from the aforementioned judgments are:38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 .38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof.33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184 may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same.34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150 arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand.35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184, this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80 and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case.36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed. | 0 | 5,279 | 2,102 | ### 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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false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 . 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof. 33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184 may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same. 34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150 arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand. 35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184, this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80 and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case. 36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded. 37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed.
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employer had foisted a false charge, then there will be ample justification for award of full back wages.38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 .38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof.33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184 may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same.34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150 arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand.35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184, this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80 and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case.36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed.
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Abinash Chandra Bannerji And Others Vs. Uttarpara Hitakari Sabha And Others | the circumstances obtaining at the time the document was executed and the recitals found therein. Under the will the testator made the following bequests depending upon different contingencies : Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts. The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one-fourth share subject to their paying one-fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three-fourths of the annuities and charges. The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges. In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will. The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges. The quantum of bequests made in favour of the Sabha expanded from contingency to contingency. During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month. In the event of either the testator or his nephew not having any children, there direction was that the said Sabha should get rupees fifty per month. In that contingency not only the said Sabha but any other institution which took its place would get the said amount. It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Ooterpara reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees. On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place. The said amount was directed to be paid thus : "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics." At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legal heirs.Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity. The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge.8. No other question arises in this appeal. | 1[ds]It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in thedid not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals foundAt present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legalquestion is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whetherthe legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes.Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than aother question arises in this appeal. | 1 | 2,992 | 504 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the circumstances obtaining at the time the document was executed and the recitals found therein. Under the will the testator made the following bequests depending upon different contingencies : Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts. The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one-fourth share subject to their paying one-fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three-fourths of the annuities and charges. The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges. In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will. The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges. The quantum of bequests made in favour of the Sabha expanded from contingency to contingency. During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month. In the event of either the testator or his nephew not having any children, there direction was that the said Sabha should get rupees fifty per month. In that contingency not only the said Sabha but any other institution which took its place would get the said amount. It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Ooterpara reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees. On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place. The said amount was directed to be paid thus : "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics." At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legal heirs.Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity. The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge.8. No other question arises in this appeal.
### Response:
1
### Explanation:
It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in thedid not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals foundAt present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testators nephew and that the Sabha is the only institution entitled to receive the amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bona fide purchaser for value of the property bequeathed to the legalquestion is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whetherthe legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes.Having regard to the circumstances visualized at the time the last contingency happened, the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than aother question arises in this appeal.
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Commissioner of Income Tax, Bombay Vs. M/s. C. Parakh & Company (India) Limited | out of Rs. 15,63,504, the total income of the assessee, and it was only the net income of Rs. 12,50,804 that had been allocated, Rs. 7,55,925 for the business at Bombay and Rs. 4,94,879 for the Karachi business, and that to disallow Rs. 1,23,719 which had been included in the profit and loss statement of Pakistan would be to give relief twice over in respect of the same income. It was also contended that as the assessee had itself deducted that amount from the profits as business allowance in its profit and loss statement for Karachi and obtained relief in Pakistan on that footing, it was not entitled to claim relief in respect of that very amount under the terms of the Agreement between the two Dominions. For the respondent, Mr. Kolah contended that under the provisions of the Income-tax Act the respondent was not entitled to deduct Rs. 1,23,719, in the profits earned at Karachi, that in deducting that amount in the profit and loss statement for Karachi the assessee had made a mistake, and that, in fact, the Income-tax authorities in Pakistan who had originally admitted the deduction on the basis of the profit and loss statement had subsequently revised the assessment on the ground of error, and had disallowed it. He further contended that the question as to the relief to which the assessee was entitled under the Agreement between the two dominions was not the subject of reference under S. 66(1), and therefore did not arise for consideration. Now,. The question referred under S. 66 (1) for the decision of the court is simply whether the sum Rs. 1,23,719 is allowable a deduction against the India profits of the company, and though there is some discussion in the judgment of the High Court on the scope of the Agreement between the two Dominions and the principles deducible from the provisions thereof, the reference itself did not raise any such question, and we refer not to express any opinion thereon.8. On the question of the admissibility of the deduction of Rs. 1,23,719, the contention of the appellant is that as the respondent had itself split up the commission of Rs. 3,12,699 paid to the managing agents, and appropriated Rs.1,23,719 thereof to the profits earned at Karachi and had debited the same with it, it was not entitled to go back upon it, and claim the amount as a deduction against the Indian profits.We do not see any force in this contention. Whether the respondent it entitled to a particular deduction or not will depend on the provision of law relating thereto, and not on the view which it might take of its rights, and consequently, if the whole of the commission is under the law liable to be deducted against the Indian profits, the respondent cannot be estopped from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, notwithstanding the apportionment made by the respondent in the profit and loss statements, the deduction is admissible under the law.9. Section 10(2)(xv) of the Indian Income-tax Act provides that in computing the profits of a business, allowance is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in cotton both in India and in Karachi.When as assessee carries on the same business at a number of places, there is for the purpose of S. 10, only one business, and the net profits of the business have to be ascertained by pooling together the profits earned in all the branches and deducting therefrom all the expenses. The fact that some of the branches are in foreign territories will make no difference in the position if the assessee is, as in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expresses including the commission payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how the Income-tax Officer has worked out the figures. The respondent is therefore clearly entitled to a deduction of the whole of the commission of Rs. 3,12,699 paid to the managing agents including the sum of Rs. 1,23,719 against the Indian profits.10. It should further be added that the apportionment of Rs. 1,23,719 in the profit and loss statement of the Karachi branch on which the appellant rests his argument is not warranted by the terms of the managing agency agreement .and is indeed opposed to them.Under that agreement, the managing agents are entitled to a 20 per cent. commission on the annual net profits of the company, and to ascertain those profits, one has to take into account the result of the trade in all its branches.In the present case, profits were earned during the accounting period both in Bombay and in Karachi, and the apportionment of the commission between the two branches makes no material difference in the result. But is might happen that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be commission not on the profits made in Bombay but on the net profits after setting off the loss in the Karachi branch against the profits of the Bombay business. And that would also be the position if the business at Bombay resulted in loss, while that at Karachi ended in profit.The appropriation, therefore, of Rs. 1,23,719 as proportionate commission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that branch is not in accordance either with the terms of the managing agency agreement, or with the rights of the respondent under the law. | 0[ds]8. On the question of the admissibility of the deduction of Rs. 1,23,719, the contention of the appellant is that as the respondent had itself split up the commission of Rs. 3,12,699 paid to the managing agents, and appropriated Rs.1,23,719 thereof to the profits earned at Karachi and had debited the same with it, it was not entitled to go back upon it, and claim the amount as a deduction against the Indian profits.We do not see any force in this contention. Whether the respondent it entitled to a particular deduction or not will depend on the provision of law relating thereto, and not on the view which it might take of its rights, and consequently, if the whole of the commission is under the law liable to be deducted against the Indian profits, the respondent cannot be estopped from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, notwithstanding the apportionment made by the respondent in the profit and loss statements, the deduction is admissible under the law.9. Section 10(2)(xv) of the IndianAct provides that in computing the profits of a business, allowance is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in cotton both in India and in Karachi.When as assessee carries on the same business at a number of places, there is for the purpose of S. 10, only one business, and the net profits of the business have to be ascertained by pooling together the profits earned in all the branches and deducting therefrom all the expenses. The fact that some of the branches are in foreign territories will make no difference in the position if the assessee is, as in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expresses including the commission payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how theOfficer has worked out the figures. The respondent is therefore clearly entitled to a deduction of the whole of the commission of Rs. 3,12,699 paid to the managing agents including the sum of Rs. 1,23,719 against the Indian profits.10. It should further be added that the apportionment of Rs. 1,23,719 in the profit and loss statement of the Karachi branch on which the appellant rests his argument is not warranted by the terms of the managing agency agreement .and is indeed opposed to them.Under that agreement, the managing agents are entitled to a 20 per cent. commission on the annual net profits of the company, and to ascertain those profits, one has to take into account the result of the trade in all its branches.In the present case, profits were earned during the accounting period both in Bombay and in Karachi, and the apportionment of the commission between the two branches makes no material difference in the result. But is might happen that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be commission not on the profits made in Bombay but on the net profits after setting off the loss in the Karachi branch against the profits of the Bombay business. And that would also be the position if the business at Bombay resulted in loss, while that at Karachi ended in profit.The appropriation, therefore, of Rs. 1,23,719 as proportionate commission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that branch is not in accordance either with the terms of the managing agency agreement, or with the rights of the respondent under the law. | 0 | 2,326 | 729 | ### 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:
out of Rs. 15,63,504, the total income of the assessee, and it was only the net income of Rs. 12,50,804 that had been allocated, Rs. 7,55,925 for the business at Bombay and Rs. 4,94,879 for the Karachi business, and that to disallow Rs. 1,23,719 which had been included in the profit and loss statement of Pakistan would be to give relief twice over in respect of the same income. It was also contended that as the assessee had itself deducted that amount from the profits as business allowance in its profit and loss statement for Karachi and obtained relief in Pakistan on that footing, it was not entitled to claim relief in respect of that very amount under the terms of the Agreement between the two Dominions. For the respondent, Mr. Kolah contended that under the provisions of the Income-tax Act the respondent was not entitled to deduct Rs. 1,23,719, in the profits earned at Karachi, that in deducting that amount in the profit and loss statement for Karachi the assessee had made a mistake, and that, in fact, the Income-tax authorities in Pakistan who had originally admitted the deduction on the basis of the profit and loss statement had subsequently revised the assessment on the ground of error, and had disallowed it. He further contended that the question as to the relief to which the assessee was entitled under the Agreement between the two dominions was not the subject of reference under S. 66(1), and therefore did not arise for consideration. Now,. The question referred under S. 66 (1) for the decision of the court is simply whether the sum Rs. 1,23,719 is allowable a deduction against the India profits of the company, and though there is some discussion in the judgment of the High Court on the scope of the Agreement between the two Dominions and the principles deducible from the provisions thereof, the reference itself did not raise any such question, and we refer not to express any opinion thereon.8. On the question of the admissibility of the deduction of Rs. 1,23,719, the contention of the appellant is that as the respondent had itself split up the commission of Rs. 3,12,699 paid to the managing agents, and appropriated Rs.1,23,719 thereof to the profits earned at Karachi and had debited the same with it, it was not entitled to go back upon it, and claim the amount as a deduction against the Indian profits.We do not see any force in this contention. Whether the respondent it entitled to a particular deduction or not will depend on the provision of law relating thereto, and not on the view which it might take of its rights, and consequently, if the whole of the commission is under the law liable to be deducted against the Indian profits, the respondent cannot be estopped from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, notwithstanding the apportionment made by the respondent in the profit and loss statements, the deduction is admissible under the law.9. Section 10(2)(xv) of the Indian Income-tax Act provides that in computing the profits of a business, allowance is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in cotton both in India and in Karachi.When as assessee carries on the same business at a number of places, there is for the purpose of S. 10, only one business, and the net profits of the business have to be ascertained by pooling together the profits earned in all the branches and deducting therefrom all the expenses. The fact that some of the branches are in foreign territories will make no difference in the position if the assessee is, as in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expresses including the commission payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how the Income-tax Officer has worked out the figures. The respondent is therefore clearly entitled to a deduction of the whole of the commission of Rs. 3,12,699 paid to the managing agents including the sum of Rs. 1,23,719 against the Indian profits.10. It should further be added that the apportionment of Rs. 1,23,719 in the profit and loss statement of the Karachi branch on which the appellant rests his argument is not warranted by the terms of the managing agency agreement .and is indeed opposed to them.Under that agreement, the managing agents are entitled to a 20 per cent. commission on the annual net profits of the company, and to ascertain those profits, one has to take into account the result of the trade in all its branches.In the present case, profits were earned during the accounting period both in Bombay and in Karachi, and the apportionment of the commission between the two branches makes no material difference in the result. But is might happen that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be commission not on the profits made in Bombay but on the net profits after setting off the loss in the Karachi branch against the profits of the Bombay business. And that would also be the position if the business at Bombay resulted in loss, while that at Karachi ended in profit.The appropriation, therefore, of Rs. 1,23,719 as proportionate commission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that branch is not in accordance either with the terms of the managing agency agreement, or with the rights of the respondent under the law.
### Response:
0
### Explanation:
8. On the question of the admissibility of the deduction of Rs. 1,23,719, the contention of the appellant is that as the respondent had itself split up the commission of Rs. 3,12,699 paid to the managing agents, and appropriated Rs.1,23,719 thereof to the profits earned at Karachi and had debited the same with it, it was not entitled to go back upon it, and claim the amount as a deduction against the Indian profits.We do not see any force in this contention. Whether the respondent it entitled to a particular deduction or not will depend on the provision of law relating thereto, and not on the view which it might take of its rights, and consequently, if the whole of the commission is under the law liable to be deducted against the Indian profits, the respondent cannot be estopped from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, notwithstanding the apportionment made by the respondent in the profit and loss statements, the deduction is admissible under the law.9. Section 10(2)(xv) of the IndianAct provides that in computing the profits of a business, allowance is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in cotton both in India and in Karachi.When as assessee carries on the same business at a number of places, there is for the purpose of S. 10, only one business, and the net profits of the business have to be ascertained by pooling together the profits earned in all the branches and deducting therefrom all the expenses. The fact that some of the branches are in foreign territories will make no difference in the position if the assessee is, as in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expresses including the commission payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how theOfficer has worked out the figures. The respondent is therefore clearly entitled to a deduction of the whole of the commission of Rs. 3,12,699 paid to the managing agents including the sum of Rs. 1,23,719 against the Indian profits.10. It should further be added that the apportionment of Rs. 1,23,719 in the profit and loss statement of the Karachi branch on which the appellant rests his argument is not warranted by the terms of the managing agency agreement .and is indeed opposed to them.Under that agreement, the managing agents are entitled to a 20 per cent. commission on the annual net profits of the company, and to ascertain those profits, one has to take into account the result of the trade in all its branches.In the present case, profits were earned during the accounting period both in Bombay and in Karachi, and the apportionment of the commission between the two branches makes no material difference in the result. But is might happen that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be commission not on the profits made in Bombay but on the net profits after setting off the loss in the Karachi branch against the profits of the Bombay business. And that would also be the position if the business at Bombay resulted in loss, while that at Karachi ended in profit.The appropriation, therefore, of Rs. 1,23,719 as proportionate commission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that branch is not in accordance either with the terms of the managing agency agreement, or with the rights of the respondent under the law.
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West Bengal State Electricity Board Vs. Dilip Kumar Ray | of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).47. "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).48. Malice means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. 49. The legal meaning of malice is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739 ).50. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. Intentionally refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330 ).51. Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491 ).52. Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2 ) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567 ).53. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182 ).54. A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after the learned trial judge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Courts judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held "it was highly probable" that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established. As noted above, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside. | 1[ds]In our opinion, the suit was maintainable and properly decreed. There can remain no doubt on the basis of the findings of fact that the plaintiff had suffered a grievous wrong. The limitation in English Courts on the basis of the law prevailing in England do not extend and to the Indian Courts. Just as a criminal case puts the heavy machinery of the Law against an accused, so does a disciplinary proceeding but the heavy machinery of a State of other authority against the person accused of Service offence. If the State employer is unable to show that there was any reasonable cause or justification for the proceedings if the findings are found at certain stages to have been even perverse then and in that event, the technical conclusion is, that the employee has been made the victim of a proceeding, the cause for which was not a genuine inquiry into the conduct of the petitioner. What the other extraneous cause was if any, would be for the employee to allege and the employer to show as non-existent. If no causes is shown, the court is compelled to conclude that the cause was extraneous and not worth bringing out into the open public scrutiny. The present trend of the law is to allow a remedy if a wrong has been committed. On that principle also, the plaintiffs suit should lie.The High Court upheld the award of Rs.50,000/- as damages for harassment by treating the same as damages for malicious prosecution causing harassment by way of mental pain etc. The award of Rs.50,000/- was for loss of reputation was also upheld.In support of the appeal, learned counsel for the appellant- Board submitted that the whole basis on which the compensations have been awarded are really non-existent. The conclusions of the trial judge and the High Court are contrary to the whole foundation of the judgment and decree of the trial court. In the order passed by learned Single Judge in respect of the departmental proceedings there was no observation about the proceedings being mala fide or for extraneous reasons. Only on the ground that reasonable opportunity was not granted to the employee-respondent No.1, the writ petition filed by him was allowed. There was no specific averment regarding any malicious prosecution. The only averment made in the plaint shows that wild allegations were made without any material to substantiate them. Interestingly the trial court did not frame an issue as to whether there was any malicious prosecution. No evidence was led even to show that there was any malicious prosecution. It was rightly noted by the High Court that the trial court had held that the plaintiff was not entitled to damages for defamation. Curiously enough the High Court upheld the award of damages of Rs.50,000/- by coming to the conclusion that the amount appeared to have been awarded as damages for malicious prosecution causing harassment. The reasons are unfathomable.In response, learned counsel for the respondent No.1 supported the judgment and decree of the trial court as affirmed by the High Court by the impugned judgment. According to him an honest officer was being harassed by unnecessary proceedings and the innocence of the respondent no.1 was established by the judgment of the High Court in the writ petition.Malice and Malicious Prosecution as stated in the Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar read as- Unlawful intentWill; intent to commit an unlawful act or cause harm, Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendants mind at the time of the publication which is his sole or dominant motive for publishing the words complained of. This must he distinguished from legal malice or malice in law which means publication without law full excuse and does not depend upon the defendants state of mind.The intent, without justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a persons legal rights. Ill will: wickedness of heart. This sense is most typical in non legal contexts"."Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia means badness, physical or moral - wickedness in disposition or in conduct - not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose. design, intent, or motive. But intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive.""Malice in the legal sense imports (I) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.The Model Penal Code does not use malice because those who formulated the Code had a blind prejudice against the word. This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express it."Malice" in the legal acceptance of the word is not confined to personal spite against individuals but consists in a conscious violation of the law to the prejudice of another. In its legal sense it means a wrongful act done intentionally without just cause or excuse.Malice", in its legal sense, does not necessarily signily ill-will towards a particular individual, but denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. Therefore, the law implies malice where one deliberately injures another in an unlawful manner.18. Malice means an indirect wrong motive.19. Malice in its legal sense means, malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."20. Malice, in ordinary common parlance, means ill-will against a person and in legal sense, a wrongful act done intentionally, without just cause or reason. It is a question of motive, intention or state of mind and may be defined as any corrupt or wrong motive or personal spite or ill will.21. Malice in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act alone intentionally without just cause or excuse. It signifies an intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive.22. "MALICE", in common acceptation, means, ill will against a person; but in its legal sense, it means, a wrongful act done intentionally without just cause or excuse" Malice in its common acceptation, is a term involving stint intent of the mind and heart, including the will; and has been said to mean a bad mind; ill-will against a person; a wicked or evil state of the mind towards another; an evil intent or wish or design to vex or annoy another; a wilful intent to do a wrongful act; a wish to vex, annoy or injure another person or as intent to do a wrongful act; a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief.23. "MALICE" means wickedness of purpose, or a spiteful or malevolent design against another; a purpose to injure another; a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard to the rights of others, or absence or legal excuse, or any other motive than that of bringing a party tomeaning of the term malice in English law, his been a question of much difficulty and controversy; and those who made through the many disquisitions on the subjects in text-books and judicial opinions are almost tempted to the conclusion that the meaning varies almost infinitely, and that the only sense which the term can safely be predicated not to have in ant given legal context is that which it has in popular language, viz., spite or ill-will. It certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime; and even with respect to crime it has a different sense according as it is used with reference to murder, libel, or the capacity of an infant to commit crime, expressed by the rule malitia supplet act item." (Ency. of the Laws of England). Ordinarily, the absence of reasonable and probable cause in instituting a proceeding which terminates in favour of the plaintiff, would give rise to the inference of malice.MALICE has been said to mean any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However, wrong- headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution.25. MALICE means the presence of some improper and wrongful motive - that is to say an intend to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage.26. MALICE in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives.27. Malice: hatred: aversion: antipathy: enmity:Repugnance: ill-will: rancour: malevolence:Malignity: malignancy. Hatred is a very general term. Hatred applies properly to persons. It seems not absolutely involuntary. It has its root in passion, and may be checked or stimulated and indulged. Aversion is strong dislike. Aversion is a habitual sentiment, and springs from the natural taste or temperament which repels its opposites, as an indolent man has an aversion to industry, or a humane one to cruelty.28. Antipathy is used of causeless dislike, or at least one of which the cause cannot be defined. It is found upon supposition or instinctive belief, often utterly gratuitous. Enmity is the state of persona! opposition, whether accompanied by strong personal dislike or not; as "a bitter enemy." Repugnance is characteristically employed of acts or courses of action, measures, pursuits, and the like. Ill-will is a settled bias of the disposition. It is very indefinite, and may be of any degree or strength. Rancour is a deep seated and lasting feeling of ill-will. It preys upon the very mind of the subject of it. While enmity may be generous and open, rancour is malignant and private. Malice is that enmity which can abide its opportunity of injuring its object, and pervert the truth or the right, or go out of its way, or shape course of action, to compass its ends. "Malevolence commences with some idea or evil belonging to and connected with the object; and it settles into a permanent hatred of his person and of everything relative to him" - (Gogan) Malignity is cruel malevolence, or innate love of harm for the sake of doing it. It is malice the most energetic, inveterate, and sustained.29. Malice in fact. "Malice in fact" means express malice.MALICE IN FACT OR ACTUAL MALICE, relates to the actual state or condition of the mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case.30. Malice in fact implies a desire or intention to injure, while malice in law is not necessarily inconsistent with an honest purpose.Malice in law. Malice in law" means implied malice."MALICE IN LAW" simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts.31. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman v. Union of India (AIR 1979 SC 49 , 51).32. MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation.33. "MALICIOUS" means with a fixed hate, or done with evil intention or motive; not the result of sudden passion.34. Malicious abuse of civil proceedings. In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker)35. Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured.36. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object - not the purpose which it is intended by the law to effect; in other words, a perversion of it.37. Malicious abuse of process. Wilfully misapplying Court process to obtain object not intended by law. The wilful misuse or misapplication of process to accomplish a purpose not warranted or commanded by the writ. An action for malicious abuse of process lies in the following cases, A malicious petition or proceeding to adjudicate a person an insolvent, to declare a person lunatic or to wind up a company, to make action against legal practitioner under the Legal Practitioners Act, maliciously procuring arrest or attachment in execution of a decree or before judgment, order or injunction or appointment of receiver, arrest of a ship, search of the plaintiffs premises, arrest of a person by police.Malicious abuse of process of CourtMalicious act Bouvier defined a malicious act as "a wrongful act, intentionally done, without cause or excuse."38. A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischiefa wrongful act intentionally done, without legal justification or excuse.39. A malicious act is an act characterised by a preexisting or an accompanying malicious state of mind.40. Malicious Prosecution Malice. Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these: Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill-will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; malice and want of reasonable and probable cause. have reference to the state of the defendants mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.OTHER DEFINITIONS OF "MALICIOUSjudicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it.""A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure.""A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause.""A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutors sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy.The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution.42. MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutors sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.43. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendants favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn.,distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).The term malice, as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.As a general rule of law, any person is entitled though not always bound to lay before a judicial officer information as to any criminal offence which he has reasonable and probable cause to believe has been committed, with a view to ensuring the arrest, trial, and punishment of the offender. This principle is thus stated in Lightbodys case, 1882, 9 Rettie, 934. "When it comes to the knowledge of anybody that a crime has been committed a duty is laid on that person as a citizen of the country to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause; and Lord SHAND added (p. 940): "He has not only a duty but a right when the cause affects his own property.Most criminal prosecutions are conducted by private citizens in the name of the Crown. This exercise of civic rights constitutes what with reference to the la of libel is termed a privileged occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.)45. "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)]46. The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).47. "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).48. Malice means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. 49. The legal meaning of malice is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739 ).50. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. Intentionally refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330 ).51. Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491 ).52. Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2 ) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567 ).53. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182 ).54. A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after the learned trial judge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Courts judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held "it was highly probable" that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established. As noted above, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside. | 1 | 7,349 | 5,167 | ### Instruction:
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of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).47. "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).48. Malice means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. 49. The legal meaning of malice is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739 ).50. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. Intentionally refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330 ).51. Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491 ).52. Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2 ) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567 ).53. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182 ).54. A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after the learned trial judge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Courts judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held "it was highly probable" that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established. As noted above, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside.
### Response:
1
### Explanation:
of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).47. "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).48. Malice means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. 49. The legal meaning of malice is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739 ).50. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. Intentionally refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330 ).51. Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491 ).52. Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2 ) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567 ).53. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182 ).54. A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after the learned trial judge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Courts judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held "it was highly probable" that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established. As noted above, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside.
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C.I.D.C.O.Maharashtra Ltd Vs. Damodar K. Talreja | P. Venkatarama Reddi, J. 1. The appellant in both these appeals in City and Industrial Development Corporation of Maharashtra Limited - a Government Company designated as Special Planning Authority/New Town Development Authority for the development of notified area known as New Nasik. The proceedings for acquisition of vast extent of land were initiated during the year 1982 in one case and in 1975 in another case under the provisions of Maharashtra Regional Town Planning Act, 1966 read with the Land Acquisition Act. The present appeals, which we are concerned with, relate to award of compensation for portions of the said land belonging to the respondents. The compensation was determined by the Reference Court zone-wise. In Civil Appeal No. 2729/1999, the appeal filed by the State against the award of the Reference Court was dismissed upholding the determination of the market value by the Reference Court. At the same time, the High Court held that the claimants shall be entitled to get the benefits envisaged by Sections 23(1A), 23(2) and 28 of the Land Acquisition Act as added/amended by Central Act 68 of 1984. In Civil Appeal Nos. 2730-2731 of 1999, the appeal filed by the claimant against the order of the Reference Court was partly allowed by enhancing the compensation to a certain extent. The appeal filed by the State was dismissed. There also, the benefits under Sections 23(1A), 23(2) and 28 as amended were made available to the claimants.2. Strangely enough, the judgment of the High Court in each of these cases in the main appeals against the awards of the Reference Court have not been questioned at all before this Court. The orders questioned in this Court are those dismissing the appellants application for impleadment and review filed after the disposal of the appeals. The impugned order in Civil Appeal Nos. 2730-2731 of 1999 reads as follows: "Heard learned Counsel for the parties.These applications were filed in two groups of First Appeals. One group was disposed of on 19-20/4/93. The other was disposed of on 24-27/1/97. The applicant is praying for impleadment and for review of those orders. It is not possible to implead the applicant in these First Appeals which are already disposed of and consider granting of review.Civil application disposed of accordingly." 3. An identical order was passed on the same date, i.e., on 22.12.1998 in the other matter covered by Civil Appeal No. 2729 of 1999. 4. The question of law formulated in the S.L.Ps. is "whether the provisions of Sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894 as introduced by Land Acquisition (Amendment) Act No. 68 of 84 are applicable for determining the compensation payable in respect of land acquired under the Maharashtra Regional and Town Planning Act, 1966?"5. The contention of the appellants is that the acquisition under the Maharashtra Regional Town Planning Act is unaffected by subsequent amendments to the Land Acquisition Act and the provisions in vogue at the time of enactment of M.R.T.P. Act in regard to solatium, interest and other monetary benefits relatable to compensation should alone be taken into account. However, this contention was not raised before the High Court even in the main appeals. As similar issue was pending consideration in Civil Appeal No. 4394 of 1997, leave was granted by this Court. That appeal has been disposed of today. 6. Strictly speaking, the question which has been raised in the S.L.P. does not arise for consideration at all inasmuch as the main judgment of the High Court in the concerned appeals has not been questioned. Not even a ground is raised in the S.L.P. as to how the impugned order dismissing the impleadment petitions and the prayer for review is contrary to law or legally unsustainable. Even a copy of Civil Application and the counter if any filed therein has not been filed along with the S.L.P. or in the paper book. The reason given by the High Court in dismissing the Civil Applications seems to be unexceptionable. 7. The question of deciding the point of law raised by the appellants does not strictly arise for consideration in view of what is mentioned above. In any case, that issue stands concluded against the appellants in the judgment which we have pronounced today in Civil Appeal No. 4394 of 1997. 8. In the course of arguments, a contention was raised that the appellant-corporation at whose instance the application was made, is a necessary party and it should have been impleaded in the proceedings before the statutory authorities and the Courts. Relying on the decision in 1993 (1) SCC, Page 608, it is contended that the failure to make the requisitioning body as a party vitiates the acquisition. This point was not specifically raised in the S.L.P. We are not in a position even to know the averments made in the I.A. filed in Civil Application and the counter filed therein. We are saying this because the learned counsel for the respondents has stated in the course of arguments and written submissions that the appellant was well aware of the Reference proceedings and even oral and documentary evidence was produced by the appellant. It is further stated that the appellant deposited the amount decreed and also instructed the Government Pleader to file the appeals. The appellant itself did not choose to file the appeal though it was open to it to do so. It is, therefore, contended that long after the disposal of the appeal by the High Court, the bogey of prejudice is sought to be raised and the S.L.P. has been preferred apparently for the reason that the issue regarding the statutory benefits under the amended L.A. Act was pending consideration in another matter. The learned counsel for the appellant has not been in a position to rebut what the respondents counsel has stated. | 1[ds]We are saying this because the learned counsel for the respondents has stated in the course of arguments and written submissions that the appellant was well aware of the Reference proceedings and even oral and documentary evidence was produced by the appellant. It is further stated that the appellant deposited the amount decreed and also instructed the Government Pleader to file the appeals. The appellant itself did not choose to file the appeal though it was open to it to do so. It is, therefore, contended that long after the disposal of the appeal by the High Court, the bogey of prejudice is sought to be raised and the S.L.P. has been preferred apparently for the reason that the issue regarding the statutory benefits under the amended L.A. Act was pending consideration in another matter. The learned counsel for the appellant has not been in a position to rebut what the respondents counsel has stated. | 1 | 1,086 | 168 | ### 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:
P. Venkatarama Reddi, J. 1. The appellant in both these appeals in City and Industrial Development Corporation of Maharashtra Limited - a Government Company designated as Special Planning Authority/New Town Development Authority for the development of notified area known as New Nasik. The proceedings for acquisition of vast extent of land were initiated during the year 1982 in one case and in 1975 in another case under the provisions of Maharashtra Regional Town Planning Act, 1966 read with the Land Acquisition Act. The present appeals, which we are concerned with, relate to award of compensation for portions of the said land belonging to the respondents. The compensation was determined by the Reference Court zone-wise. In Civil Appeal No. 2729/1999, the appeal filed by the State against the award of the Reference Court was dismissed upholding the determination of the market value by the Reference Court. At the same time, the High Court held that the claimants shall be entitled to get the benefits envisaged by Sections 23(1A), 23(2) and 28 of the Land Acquisition Act as added/amended by Central Act 68 of 1984. In Civil Appeal Nos. 2730-2731 of 1999, the appeal filed by the claimant against the order of the Reference Court was partly allowed by enhancing the compensation to a certain extent. The appeal filed by the State was dismissed. There also, the benefits under Sections 23(1A), 23(2) and 28 as amended were made available to the claimants.2. Strangely enough, the judgment of the High Court in each of these cases in the main appeals against the awards of the Reference Court have not been questioned at all before this Court. The orders questioned in this Court are those dismissing the appellants application for impleadment and review filed after the disposal of the appeals. The impugned order in Civil Appeal Nos. 2730-2731 of 1999 reads as follows: "Heard learned Counsel for the parties.These applications were filed in two groups of First Appeals. One group was disposed of on 19-20/4/93. The other was disposed of on 24-27/1/97. The applicant is praying for impleadment and for review of those orders. It is not possible to implead the applicant in these First Appeals which are already disposed of and consider granting of review.Civil application disposed of accordingly." 3. An identical order was passed on the same date, i.e., on 22.12.1998 in the other matter covered by Civil Appeal No. 2729 of 1999. 4. The question of law formulated in the S.L.Ps. is "whether the provisions of Sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894 as introduced by Land Acquisition (Amendment) Act No. 68 of 84 are applicable for determining the compensation payable in respect of land acquired under the Maharashtra Regional and Town Planning Act, 1966?"5. The contention of the appellants is that the acquisition under the Maharashtra Regional Town Planning Act is unaffected by subsequent amendments to the Land Acquisition Act and the provisions in vogue at the time of enactment of M.R.T.P. Act in regard to solatium, interest and other monetary benefits relatable to compensation should alone be taken into account. However, this contention was not raised before the High Court even in the main appeals. As similar issue was pending consideration in Civil Appeal No. 4394 of 1997, leave was granted by this Court. That appeal has been disposed of today. 6. Strictly speaking, the question which has been raised in the S.L.P. does not arise for consideration at all inasmuch as the main judgment of the High Court in the concerned appeals has not been questioned. Not even a ground is raised in the S.L.P. as to how the impugned order dismissing the impleadment petitions and the prayer for review is contrary to law or legally unsustainable. Even a copy of Civil Application and the counter if any filed therein has not been filed along with the S.L.P. or in the paper book. The reason given by the High Court in dismissing the Civil Applications seems to be unexceptionable. 7. The question of deciding the point of law raised by the appellants does not strictly arise for consideration in view of what is mentioned above. In any case, that issue stands concluded against the appellants in the judgment which we have pronounced today in Civil Appeal No. 4394 of 1997. 8. In the course of arguments, a contention was raised that the appellant-corporation at whose instance the application was made, is a necessary party and it should have been impleaded in the proceedings before the statutory authorities and the Courts. Relying on the decision in 1993 (1) SCC, Page 608, it is contended that the failure to make the requisitioning body as a party vitiates the acquisition. This point was not specifically raised in the S.L.P. We are not in a position even to know the averments made in the I.A. filed in Civil Application and the counter filed therein. We are saying this because the learned counsel for the respondents has stated in the course of arguments and written submissions that the appellant was well aware of the Reference proceedings and even oral and documentary evidence was produced by the appellant. It is further stated that the appellant deposited the amount decreed and also instructed the Government Pleader to file the appeals. The appellant itself did not choose to file the appeal though it was open to it to do so. It is, therefore, contended that long after the disposal of the appeal by the High Court, the bogey of prejudice is sought to be raised and the S.L.P. has been preferred apparently for the reason that the issue regarding the statutory benefits under the amended L.A. Act was pending consideration in another matter. The learned counsel for the appellant has not been in a position to rebut what the respondents counsel has stated.
### Response:
1
### Explanation:
We are saying this because the learned counsel for the respondents has stated in the course of arguments and written submissions that the appellant was well aware of the Reference proceedings and even oral and documentary evidence was produced by the appellant. It is further stated that the appellant deposited the amount decreed and also instructed the Government Pleader to file the appeals. The appellant itself did not choose to file the appeal though it was open to it to do so. It is, therefore, contended that long after the disposal of the appeal by the High Court, the bogey of prejudice is sought to be raised and the S.L.P. has been preferred apparently for the reason that the issue regarding the statutory benefits under the amended L.A. Act was pending consideration in another matter. The learned counsel for the appellant has not been in a position to rebut what the respondents counsel has stated.
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State Of U.P Vs. Krishna Master | his brother in the incident as well as PW2 Madan Lal who lost five members of his family. Their evidence is found to be trustworthy and unimpeachable. As observed earlier, their evidence does not suffer from major contradiction and/or improvements nor noticeable embellishment have been made by them. As the prosecution has led acceptable eye-witnesses account of the incident, this Court is of the firm opinion that failure to establish motive would not entitle the respondents to claim acquittal.16. There is yet another evidence in form of oral dying declaration which implicates the appellants in the murder of six persons i.e. oral dying declaration made by deceased Baburam before his brother Jhabbulal. The High Court committed serious error in disbelieving the oral dying declration made by deceased Baburam before his real brother Jhabbulal (PW1) implicating the appellants as his assailants. The reasons given by the High Court for disbelieving oral dying declaration was that it was not mentioned by witness Jhabbulal either in his FIR or in his statement recorded under Section 161 of Cr.P.C. As observed earlier FIR need not be an encyclopedia of minute details of the incident nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. It is relevant to notice that six brutal and gruesome murders had taken place wherein fire arms were used. The hard reality of life is that the persons who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minutest details either in his FIR or statement under Section 161. The question before the Court is whether the assertion made by the witness that soon after the incident he had gone to the place where his injured brother was lying and on enquiry by him, his brother had told him that the appellants were his assailants, inspires confidence of the Court. Reading the evidence of the witness as a whole, this Court points that it has ring of truth in it. There is nothing improbable if a brother approaches his injured brother and tries to know from him as to how he had received the injuries nor it is improbable that an enquiry being made the injured brother would not give reply/information sought from him. The assertion by witness Jhabbulal that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the appellants had caused injuries to him, could not be effectively challenged during cross-examination of the witness nor it could be brought on record that because of the nature of the injuries received by Baburam he would not have survived even for few minutes and must have died immediately on the receipt of the injuries.17. The net result of the above discussion is that the High Court has acquitted respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to ground realities of life. The High Court has recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliable eye-witnesses. The High Court was not justified in upsetting well reasoned conviction of the respondents recorded by the Trial Court which after observing demur of the eye-witnesses had placed reliance on their testimony. The High Court has not taken into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses to come to a particular purpose. For example, the High Court has not taken into consideration the whole testimony of DW1 before coming to the conclusion that there was complete darkness in the village which prevented the eye-witnesses from witnessing the incident. The general impression this Court has gathered is that appreciation of evidence by the High Court is cursory and has done injustice to the prosecution.18. On the facts and in the circumstances of the case, this Court is of the firm opinion that it is firmly established by the prosecution that respondents are persons who had committed six murders on August 10/11, 1991 and, therefore, liable to be convicted under Section 302 read with Section 34 IPC.19. This Court has heard the learned counsel for the parties regarding sentence to be imposed on each respondent for having committed offence punishable under Section 302 read with Section 34 IPC. This Court notices that the Trial Court had sentenced all the three respondents to capital punishment. There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case evolved by this Court and, therefore, the Trial Court was perfectly justified in imposing capital punishment on the respondents. However, this Court also notices that the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. Further, the High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. Therefore, this Court is of the opinion that interest of justice would be served if each of the respondent is sentenced to RI for life and a fine of Rs.25,000/- each in default RI for two years for commission of offence punishable under Section 302 read with Section 34 IPC. | 1[ds]13. The abovestated reasons are the only grounds on which testimony of witness Madan Lal is disbelieved by the High Court. This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lals understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence. This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW2, Madan Lal came to be disbelieved can hardly be affirmed by this Court. One of the reasons given by the High Court to disbelieve testimony of witness Madan Lal is that Rajesh and Smt. Sarla who were of mature age and were in a better position to depose about the incident were not produced before the Court. It is nobodys case that witness Madan lal was in charge of prosecution case. The Public Prosecutor was in charge of the case and it was for him to decide whether Rajesh and/or Smt. Sarla should be examined or not. The evidence of witness Madan Lal, in no uncertain terms, discloses that his brother Rajesh and sister Smt. Sarla were ready to depose before the Court about the incident. However, forof his brother Rajesh and his sister Sarla before the Court, witness Madan Lal was never responsible. He had not taken any decision for examining his brother Rajesh and Smt. Sarla. It was the discretion and decision of the Public Prosecutor due to which his brother and sister were not examined as witnesses. At no stage of the trial, the defence had made a request to the Trial Court to call upon the Public Prosecutor to examine Rajesh and Smt. Sarla as witnesses. It is the case of the defence that Rajesh and Smt. Sarla had witnessed the incident and if they had been examined as witnesses, they would have deposed against the prosecution case that the respondents were not responsible for murders of five family members of Guljari and brother of the first informant. In such circumstances, it was incumbent upon and open to the defence to examine Rajesh and/or Smt. Sarla as defence witness. No prayer was made by the defence to examine Rajesh and Smt. Sarla even as court witnesses. Therefore, forof Rajesh and/or Smt. Sarla, witness Madan Lal could not have been blamed nor his evidence could have been brushed aside in a casual manner. The acceptance of submission made by the counsel for the respondents that Rajesh and Smt. Sarla were not produced because they were not prepared to support the false story set up by PW1, Jhabbulal in his FIR against the respondents on account of his personal animosity, is not understandable at all and appears to be figment of imagination of the defence. Nothing could be brought on record or elicited from theof either PW1 Jhabbulal or PW2 Madan Lal to show that they were ready and willing to allow real culprits who had committed heinous crime and virtually wiped off family of Guljari and murdered real brother of the first informant to go scot free and implicate the respondents falsely in such a serious case.14. One of the reasons given by the High Court for disbelieving testimony of PW2, Madan Lal is that the evidence indicated that a large number of villagers had gathered outside the door of Gulzari Lals house but not even one of them was examined to justify that PW2 Madan Lal was present in his house. The High Court has further held that presence of witness Madan Lal in his house becomes doubtful because if he had been present inside the house at the time of occurrence, his presence would have been noticed by the assailants and he would not have been spared by them. To say the least, these reasons are not tenable at all. As noticed earlier, the case of witness Madan lal is that on hearing sound of gun shots, he had slipped beneath the cot and from there witnessed the whole incident. This story appears to be probable because the incident had taken place during night time in the house and therefore it was possible for the witness to slip beneath the cot without being noticed by the assailants. It is nobodys case that the respondents, while killing Guljari and his family, had seen below the cot to find out whether any other member of Guljaris family was alive or not. Therefore, to say that Madanlal must not have been inside the room otherwise he would have been killed by the assailants is a far fitted reason which does not appeal to this Court. It is true that it has come in evidence that a large number of villagers had gathered outside the door of Guljari Lals house. But this Court is of the opinion that it was not necessary for the prosecution to examine any of the witnesses to prove that he had seen PW2 Madan Lal in Madan Lals house. PW2 Madan Lal himself is competent to state before the Court whether he was present in his house at the time of incident. Witness Madan Lal has given evidence in a simple manner without making any noticeable improvements and/or embellishments and, therefore, it was not necessary for the court to seek corroboration to his assertion that he was in his house when the incident had taken place. What is relevant to notice is that the court cannot forget the fact that at the time of incident, PW2 Madan Lal was a tender aged child. Normally, a child aged six years is not expected to be out of house at the dead of night and he is expected to be in the company of his parents. Moreover, the testimony of witness Lajveer Singh, PW3, who was posted at Police Station, Kayamganj, Farrukhabad shows that after registration of offences, ASI Gajraj Singh had recorded statements of those persons who were found to be conversant with the facts of the case and Gajraj Singh had also recorded statement of witness Madan Lal on August 11, 1991. If witness Madan lal had not been present in his house at the time when the incident had taken place, his police statement would not have been recorded by ASI Gajraj Singh at all. Thus, the reasons on which presence of PW2, Madan Lal is doubted is against the weight of evidence, human conduct and preponderance of probabilities. Further, at the time of incident, PW2, Madan Lal was of tender age and, therefore, incapable of nurturing any grudge against any of the respondents. No evidence could be produced nor any suggestion was made to witness Madan Lal during histhat something serious had happened between the date of incident and recording of evidence of witness Madan Lal in court, between Madan Lal and the respondents that Madan Lal was out to implicate the respondents falsely in such a serious case.15. One of the grounds mentioned by the High Court in the impugned judgment for disbelieving the case of the prosecution is that Rajesh who was brother of PW2, Madan Lal and Smt. Sarla who is sister of witness Madan Lal as well as few of those who had collected near the door of the house of Guljari after the incident were not examined as witnesses in this case. As far as this ground is concerned, the Court notices that Section 134 of the Indian Evidence Act specifically provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. It is well known principal of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. Therule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where, the court finds that the testimony of solitary witness is neither wholly reliable nor wholly unreliable, it may, in given set of facts, seek corroboration but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution. This Court, onof evidence, finds that the testimony of witness Madan Lal is cogent, consistent and reliable. Taking into consideration the manner in which witness Madan Lal had testified before the Court and the fact that nothing could be elicited in his lengthyfor days together to impeach his credibility, this Court is of the view that his testimony is reliable and can be accepted without any reservations. Therefore,of his brother or sister or few others who had gathered near the house of deceased Guljari Lal after the incident is of no significance and does not affect credibility of testimony of the said witness. Cumulative effect of the above discussion is that the High Court was not justified in brushing aside testimony of PW2, Madan Lal while considering case of the prosecution against the respondents.Yet another ground assigned by the High Court for disbelieving the testimony of first informant Jhabbulal and that of PW2 Madan Lal is that there was no electricity light in the village and, therefore, the claim made by both the witnesses that they had witnessed the incident in the light of electricity is untrustworthy. To begin with, this Court proposes to refer to the First Information Report lodged by witness Jhabbulal. The said report was brought on the record as ExhibitIn the report, it is clearly mentioned that at the time of occurrence of the incident, there was electricity light at the place of incident and with the help of the said light, the first informant was able to witness the incident wherein five members of deceased Guljaris family came to be murdered by the respondents. The witness Jhabbulal has further stated that his brother Babu Ram, who was sleeping in his shop was dragged out from the shop by the respondents by breaking open the door of the shop and thereafter was murdered by them by firing gun shots. Regarding murder of Babu Ram also, it is mentioned in the First Information Report that electric bulb was burning at his house at the time of occurrence of the incident and, therefore, he was able to witness the murder of his brother Babu Ram. PW2, Madan Lal has stated that his father, mother and three real brothers were murdered by the respondents by firing gun shots and had asserted that at the time of the incident one bulb was burning on the main gate of his house whereas another bulb was burning on the thatched roof, i.e., near the place where the deceased had slept during the night of the incident. Though both the witnesses wereat great length by the learned counsel for the defence, nothing significant could be brought on record from which one can, with certainty deduce that there was no light of electricity bulbs at the place of the incident. Apart from what is mentioned by the tworegarding sufficiency of electricity light in which they had witnessed the incident, the sketch of the spot prepared by the Investigating Officer on August 11, 1991 in the presence of independent witnesses and produced as Exhibitshows that point `L mentioned in the panchnama of place of occurrence, a bulb has been shown burning at the main gate of the house of PW2 Madan Lal whereas another bulb is shown burning at the place mentioned as `AL. Thus, assertion made by the two eyewitnesses that they were able to witness the incident because of availability of sufficient electricity light gets corroboration from contemporaneous document, namely, ExhibitAccording to the High Court, the place pointed by PW2, Madan Lal where an electric bulb was hanging has not been shown in the site plan and on the contrary it has been shown at a different place. Even if it is assumed that the place mentioned by PW2, Madan Lal where an electric bulb was hanging is different from the place shown in the site plan, the fact remains that an electric bulb was hanging at the place of incident which is completely ignored by the High Court. It is relevant to notice that PW2, during the course of recording of his statement before the Court had mentioned that he had shown to the Investigating Officer the place where the bulb was hanging but he was not in a position to specify the reason as to why the place shown by him to the Investigating Officer was not mentioned in the site plan. It may be mentioned that the Investigating Officer ASI Gajraj Singh, unfortunately, expired before the commencement of the trial and, therefore, another officer was examined who had taken a little part in the investigation. Thus, the contradiction and/or omission in the statement of the witness recorded under Section 161 of the Criminal Procedure Code could not be brought on the record of the case. In such circumstances, there was no reason for the High Court to disbelieve the claim made by PW2 Madan lal that he had shown to the Investigating Officer the place where the bulb was hanging. Jhabbulal had stated in this evidence that Guljari had taken electric line illegally be putting a wire on the main line which proceeded to the tube well of Suresh Chand DW1. The High Court relied upon the testimony of Suresh Chand that no villager had taken electricity from his tube well line and thereafter concluded that there was complete darkness in the whole village on account of Amavasya of rainy season and, therefore, it was not possible for the twoto witness the incident. It becomes absolutely necessary for this Court to scan the evidence of DW1. DW1 in his evidence before the Court stated that he was having a tubewell in village Lakhanpur prior to the date of incident and that tubewell was being operated with the electric power. It was also mentioned by him that the electricity connection was in running condition and that the electricity line passes through the village. What is stated by the witness is that during the night of the incident, he was not present in his village Lakhanpur but had gone to his sisters house situated in another village and that he had come back to his village on the third day of the date of the incident. If this witness was not present on the date of incident, he was least competent to depose before the Court as to whether on the date of incident there was electricity light in the village or not. A specific question as to whether on the fateful night electricity was taken illegally by putting Katiya to his wire was put to this witness. This witness was not able to answer this specific query naturally because he had admitted that on the date of incident he was not present in the village. The Trial Court rightly observed that it was not concerned with the question whether the electric power was being consumed by the villagers legally or illegally and that the Court was only concerned with the question whether there was sufficient light on the date of incident to enable the witnesses to see the incident. The High Court has misread the evidence of DW1 Suresh Chand as well as that of PW2 Madan Lal, wherein it was asserted by him that he had also taken illegal electricity connection and was consuming the same through the bulbs which according to him were burning on the date of incident. Thus the reliable evidence of PW1 and PW2 cannot be brushed aside on the ground that Investigating Officer had not taken into possession the bulbs hanging on the place of incident. Thus, the High Court was not justified in holding that there was no electric power in the whole village and that there was complete darkness on account of Amavasya of rainy season due to which it was impossible for theto witness the incident. Further, the visibility capacity of urban people is not the standard to be applied to the villagers. PW2 Madan Lal has stated that the respondents had brought with them torches but as light of electricity was available in the house, torches were not put on. Thus, according to PW2 Madan Lal the respondents had in the light of electric bulb recognized the deceased persons and had fired gun shots on them. Further, if light available was sufficient for the accused persons to identify their targets for firing shots, there is no reason why the witnesses would not be able to identify the respondents as the assailants. The statement of PW1 Jhabbulal that Guljari had taken electric line illegally by putting a wire on the main line which proceeded to the tube well was disbelieved by the High Court on the ground that the Investigating Officer had not mentioned either in the site plan or in the inspection note that electric line had been taken in an unauthorized manner from the main line which proceeded to theof Suresh Chand. It is common experience of one and all that site plan or panchnama of place of incident is being prepared to indicate the state of things found at the place of incident. In site plan, Investigating Officer is not supposed to note whether electric line had been taken in an unauthorized manner or not. That is not the purpose for which site plan is prepared in a criminal case. Thus, without sufficient reason the High Court disbelieved the claim made by PW1 Jhabbulal that deceased Guljari had taken electric line illegally by putting a wire on the main line. On the facts and in the circumstances of the case emerging from the record, this Court is of the opinion that the High Court was not justified in coming to the conclusion that there was complete darkness in the whole village and, therefore, it was not possible for theto see the incident.The High Court has further held that motive alleged against deceased Guljari was developed for the first time during trial by witness Jhabbulal and there was no motive for the respondents to commit the murders of as many as five persons of the family of Gulzari Lal. A conjoint and purposeful reading of FIR with the reliable testimony of PW1 Jhabbulal and that of PW2 Madan Lal makes it very clear that the respondents were agitated and angry when the daughter of respondent No.1 had eloped with the son of the first informant. The evidence on record further shows that during the time of first elopement, on one day son of the first informant, i.e., Amar Singh, was spotted in the village and on learning about the fact that son of the first informant was seen in the village, the respondents were prepared to take revenge to what is known as to maintain honour of the family. However, the fact that Amar Singh was likely to be assaulted by the respondents had become known to wife of Guljari who hadforewarned Amar Singhand Amar Singh had, therefore, left the village to save his life. The evidence also indicates that the fact that Amar Singh had left the village all of a sudden because of information conveyed by wife of the deceased Gulzari that respondents were to assault him was later on learnt by the respondents and, therefore, the respondents were bearing a grudge against wife of Gulzari and against Gulzari. The record further shows that when the daughter of the respondent No.1 had returned to the village, Guljari in the presence of the first informant had made a suggestion to the respondent No.1 that he should get his daughter married with the son of the first informant upon which the respondent No.1 had taken an offence and asked Gulzari not to play with the honour of his family. This Court is of the opinion that sufficient evidence has been led by the prosecution to establish motive which prompted the respondents to kill five members of family of deceased Guljari. What weighed with the High Court in disbelieving the motive suggested by the prosecution was the fact that in the FIR lodged by PW1 Jhabbulal, it was not stated that because wife of Gulzari hadforewarned Amar Singhabout impending assault on him by the respondents, the respondents were not able to take revenge against Amar Singh and that Gulzari had suggested to the respondent No.1 to get his daughter married with son of PW1. The High Court held that such story was developed for the first time during trial by witness Jhabbulal who was admittedly on inimical terms with the respondents. As far as this aspect is concerned, this Court notices that the FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. The main purpose of the FIR is to enable a police officer to satisfy himself as to whether commission of cognizable offences is indicated so that further investigation can be undertaken by him. The purpose of the FIR is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the FIR. FIR is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it. Law requires FIR to contain basic prosecution case and not minute details. The law developed on the subject is that even if an accused is not named in the FIR he can be held guilty if prosecution leads reliable and satisfactory evidence which proves his participation in crime. Similarly, the witnesses whose names are not mentioned in the FIR but examined during the course of trial can be relied upon for the purpose of basing conviction against the accused.of motive in the FIR cannot be regarded as omission to state important and material fact. As a principle, it has been ruled by this Court that omission to give details in the FIR as to manner in which weapon was used by accused is not material omission amounting to contradiction. Further, this is a case wherein FIR was filed by a rustic man and, therefore,of motive in the FIR cannot be attached much importance. In Superintendent of Police, CBI & Ors. vs. Tapan Kumar Singh, AIR 2003 SC 4140 , it has been held by this Court that mere absence of indication about source of light in the FIR for identifying assailants does not, in any way, affect prosecution version. The FIR is not the last words in the prosecution case and in some cases detailed FIR could be a ground for suspicion. What is relevant to find out is whether the FIR was lodged promptly and whether it is actuated by mala fides. The record of this case indicates that FIR regarding gruesome murder of six persons was filed promptly and without any avoidable delay and, therefore, false implication of any of the respondents in such a grievous case stands ruled out. There is nothing on the record to show that FIR was result of deliberation by the first informant with other persons. As the FIR was lodged promptly, the informant, i.e., Jhabbulals evidence containing minor variations not affecting substratum of prosecution story cannot be discarded on the ground that motive which prompted the respondents to kill six persons was not mentioned in the FIR. Further, it is well settled that the prosecution is not supposed to prove motive when prosecution relies on direct evidence, i.e., evidence ofIn this case, the prosecution has examined first informant as PW1 who has lost his brother in the incident as well as PW2 Madan Lal who lost five members of his family. Their evidence is found to be trustworthy and unimpeachable. As observed earlier, their evidence does not suffer from major contradiction and/or improvements nor noticeable embellishment have been made by them. As the prosecution has led acceptableaccount of the incident, this Court is of the firm opinion that failure to establish motive would not entitle the respondents to claim acquittal.16. There is yet another evidence in form of oral dying declaration which implicates the appellants in the murder of six persons i.e. oral dying declaration made by deceased Baburam before his brother Jhabbulal. The High Court committed serious error in disbelieving the oral dying declration made by deceased Baburam before his real brother Jhabbulal (PW1) implicating the appellants as his assailants. The reasons given by the High Court for disbelieving oral dying declaration was that it was not mentioned by witness Jhabbulal either in his FIR or in his statement recorded under Section 161 of Cr.P.C. As observed earlier FIR need not be an encyclopedia of minute details of the incident nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. It is relevant to notice that six brutal and gruesome murders had taken place wherein fire arms were used. The hard reality of life is that the persons who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minutest details either in his FIR or statement under Section 161. The question before the Court is whether the assertion made by the witness that soon after the incident he had gone to the place where his injured brother was lying and on enquiry by him, his brother had told him that the appellants were his assailants, inspires confidence of the Court. Reading the evidence of the witness as a whole, this Court points that it has ring of truth in it. There is nothing improbable if a brother approaches his injured brother and tries to know from him as to how he had received the injuries nor it is improbable that an enquiry being made the injured brother would not give reply/information sought from him. The assertion by witness Jhabbulal that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the appellants had caused injuries to him, could not be effectively challenged duringof the witness nor it could be brought on record that because of the nature of the injuries received by Baburam he would not have survived even for few minutes and must have died immediately on the receipt of the injuries.17. The net result of the above discussion is that the High Court has acquitted respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to ground realities of life. The High Court has recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliableThe High Court was not justified in upsetting well reasoned conviction of the respondents recorded by the Trial Court which after observing demur of thehad placed reliance on their testimony. The High Court has not taken into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses to come to a particular purpose. For example, the High Court has not taken into consideration the whole testimony of DW1 before coming to the conclusion that there was complete darkness in the village which prevented thefrom witnessing the incident. The general impression this Court has gathered is that appreciation of evidence by the High Court is cursory and has done injustice to the prosecution.18. On the facts and in the circumstances of the case, this Court is of the firm opinion that it is firmly established by the prosecution that respondents are persons who had committed six murders on August 10/11, 1991 and, therefore, liable to be convicted under Section 302 read with Section 34 IPC.19. This Court has heard the learned counsel for the parties regarding sentence to be imposed on each respondent for having committed offence punishable under Section 302 read with Section 34 IPC. This Court notices that the Trial Court had sentenced all the three respondents to capital punishment. There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case evolved by this Court and, therefore, the Trial Court was perfectly justified in imposing capital punishment on the respondents. However, this Court also notices that the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. Further, the High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. Therefore, this Court is of the opinion that interest of justice would be served if each of the respondent is sentenced to RI for life and a fine of Rs.25,000/each in default RI for two years for commission of offence punishable under Section 302 read with Section 34 IPC. | 1 | 10,932 | 5,539 | ### Instruction:
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his brother in the incident as well as PW2 Madan Lal who lost five members of his family. Their evidence is found to be trustworthy and unimpeachable. As observed earlier, their evidence does not suffer from major contradiction and/or improvements nor noticeable embellishment have been made by them. As the prosecution has led acceptable eye-witnesses account of the incident, this Court is of the firm opinion that failure to establish motive would not entitle the respondents to claim acquittal.16. There is yet another evidence in form of oral dying declaration which implicates the appellants in the murder of six persons i.e. oral dying declaration made by deceased Baburam before his brother Jhabbulal. The High Court committed serious error in disbelieving the oral dying declration made by deceased Baburam before his real brother Jhabbulal (PW1) implicating the appellants as his assailants. The reasons given by the High Court for disbelieving oral dying declaration was that it was not mentioned by witness Jhabbulal either in his FIR or in his statement recorded under Section 161 of Cr.P.C. As observed earlier FIR need not be an encyclopedia of minute details of the incident nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. It is relevant to notice that six brutal and gruesome murders had taken place wherein fire arms were used. The hard reality of life is that the persons who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minutest details either in his FIR or statement under Section 161. The question before the Court is whether the assertion made by the witness that soon after the incident he had gone to the place where his injured brother was lying and on enquiry by him, his brother had told him that the appellants were his assailants, inspires confidence of the Court. Reading the evidence of the witness as a whole, this Court points that it has ring of truth in it. There is nothing improbable if a brother approaches his injured brother and tries to know from him as to how he had received the injuries nor it is improbable that an enquiry being made the injured brother would not give reply/information sought from him. The assertion by witness Jhabbulal that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the appellants had caused injuries to him, could not be effectively challenged during cross-examination of the witness nor it could be brought on record that because of the nature of the injuries received by Baburam he would not have survived even for few minutes and must have died immediately on the receipt of the injuries.17. The net result of the above discussion is that the High Court has acquitted respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to ground realities of life. The High Court has recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliable eye-witnesses. The High Court was not justified in upsetting well reasoned conviction of the respondents recorded by the Trial Court which after observing demur of the eye-witnesses had placed reliance on their testimony. The High Court has not taken into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses to come to a particular purpose. For example, the High Court has not taken into consideration the whole testimony of DW1 before coming to the conclusion that there was complete darkness in the village which prevented the eye-witnesses from witnessing the incident. The general impression this Court has gathered is that appreciation of evidence by the High Court is cursory and has done injustice to the prosecution.18. On the facts and in the circumstances of the case, this Court is of the firm opinion that it is firmly established by the prosecution that respondents are persons who had committed six murders on August 10/11, 1991 and, therefore, liable to be convicted under Section 302 read with Section 34 IPC.19. This Court has heard the learned counsel for the parties regarding sentence to be imposed on each respondent for having committed offence punishable under Section 302 read with Section 34 IPC. This Court notices that the Trial Court had sentenced all the three respondents to capital punishment. There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case evolved by this Court and, therefore, the Trial Court was perfectly justified in imposing capital punishment on the respondents. However, this Court also notices that the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. Further, the High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. Therefore, this Court is of the opinion that interest of justice would be served if each of the respondent is sentenced to RI for life and a fine of Rs.25,000/- each in default RI for two years for commission of offence punishable under Section 302 read with Section 34 IPC.
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the prosecution has examined first informant as PW1 who has lost his brother in the incident as well as PW2 Madan Lal who lost five members of his family. Their evidence is found to be trustworthy and unimpeachable. As observed earlier, their evidence does not suffer from major contradiction and/or improvements nor noticeable embellishment have been made by them. As the prosecution has led acceptableaccount of the incident, this Court is of the firm opinion that failure to establish motive would not entitle the respondents to claim acquittal.16. There is yet another evidence in form of oral dying declaration which implicates the appellants in the murder of six persons i.e. oral dying declaration made by deceased Baburam before his brother Jhabbulal. The High Court committed serious error in disbelieving the oral dying declration made by deceased Baburam before his real brother Jhabbulal (PW1) implicating the appellants as his assailants. The reasons given by the High Court for disbelieving oral dying declaration was that it was not mentioned by witness Jhabbulal either in his FIR or in his statement recorded under Section 161 of Cr.P.C. As observed earlier FIR need not be an encyclopedia of minute details of the incident nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. It is relevant to notice that six brutal and gruesome murders had taken place wherein fire arms were used. The hard reality of life is that the persons who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minutest details either in his FIR or statement under Section 161. The question before the Court is whether the assertion made by the witness that soon after the incident he had gone to the place where his injured brother was lying and on enquiry by him, his brother had told him that the appellants were his assailants, inspires confidence of the Court. Reading the evidence of the witness as a whole, this Court points that it has ring of truth in it. There is nothing improbable if a brother approaches his injured brother and tries to know from him as to how he had received the injuries nor it is improbable that an enquiry being made the injured brother would not give reply/information sought from him. The assertion by witness Jhabbulal that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the appellants had caused injuries to him, could not be effectively challenged duringof the witness nor it could be brought on record that because of the nature of the injuries received by Baburam he would not have survived even for few minutes and must have died immediately on the receipt of the injuries.17. The net result of the above discussion is that the High Court has acquitted respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to ground realities of life. The High Court has recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliableThe High Court was not justified in upsetting well reasoned conviction of the respondents recorded by the Trial Court which after observing demur of thehad placed reliance on their testimony. The High Court has not taken into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses to come to a particular purpose. For example, the High Court has not taken into consideration the whole testimony of DW1 before coming to the conclusion that there was complete darkness in the village which prevented thefrom witnessing the incident. The general impression this Court has gathered is that appreciation of evidence by the High Court is cursory and has done injustice to the prosecution.18. On the facts and in the circumstances of the case, this Court is of the firm opinion that it is firmly established by the prosecution that respondents are persons who had committed six murders on August 10/11, 1991 and, therefore, liable to be convicted under Section 302 read with Section 34 IPC.19. This Court has heard the learned counsel for the parties regarding sentence to be imposed on each respondent for having committed offence punishable under Section 302 read with Section 34 IPC. This Court notices that the Trial Court had sentenced all the three respondents to capital punishment. There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case evolved by this Court and, therefore, the Trial Court was perfectly justified in imposing capital punishment on the respondents. However, this Court also notices that the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. Further, the High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. Therefore, this Court is of the opinion that interest of justice would be served if each of the respondent is sentenced to RI for life and a fine of Rs.25,000/each in default RI for two years for commission of offence punishable under Section 302 read with Section 34 IPC.
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Bhanji Bagawandas Vs. Commissioner Of Income-Tax, Madras | reference the effect of Section 2 of the Income-tax (Amendment) Act (Act I of 1959) must be taken into consideration and in view of the amendment made by that Section of the amending Act the question referred to the High Court must be answered necessarily against the appellant. Section 2 of the Amendment Act, 1959 inserted in Section 34 of the Act a new sub-section (4) which provides:"A notice under clause (a) of sub-section (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of Section 18 of the Finance Act, 1956 (18 of 1956), had expired in respect of the year to which the notice relates." Section 4 of the Amending Act, 1959 read as follows:"No notice issued under clause (a) of sub-section (1) of Section 34 of the principal Act at any time before the commencement of this Act and no assessment, re-assessment or settlement made or other proceeding taken in consequence of such notice shall be called in question in any court, tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re-assessment was made the time within which such notice should have been issued or the assessment or re-assessment should have been made under that Section as in force before its amendment by clause (a) of Section 18 of the Finance Act, 1956 (18 of 1956), had expired". Mr. Veda Vyas referred to the decision of the Bombay High Court in Onkarmal Meghraj v. Commr. of Income-tax, Bombay-1, (1960) 38 ITR 369 = (AIR 1960 Bom 163 ) in which it was held that there was nothing in Section 2 or 4 of the Amending Act of 1959 to restrict the terms of the words "at any time" occurring in Section 4 of that Act as meaning "at any time after April 1, 1956", viz., the date on which the amendments made by the Finance Act, 1956, came into force and there was nothing in the provisions of the Amendment Act of 1959 which limited the retrospective operation of Section 4. It was also held that since the enactment of the Amendment Act of 1959 a notice issued after April 1, 1956, for reopening an assessment, by virtue of Section 4, could not be permitted to be called in question on the ground that the notice was not issued within the period prescribed by the unamended Section 34 (1) (a). On behalf of the respondent reference was also made to the decision of this Court in S. C. Prashar v. Vasantsen Dwarkadas, (1963) 49 ITR (SC) 1 = (AIR 1963 SC 1356 ), in which it was held that Section 4 of the Amendment Act, 1959 operated on and validated notices issued under Section 34 (1) (a) as amended in 1948 even earlier than April 1, 1956, in other words in respect of assessment years prior to March 31, 1956, and therefore notices issued under S. 34(1)(a) of the Income-tax Act before April 1, 1956, could not be challenged on the ground that they were issued beyond the time limit of eight years from the respective assessment years prescribed by the 1948 amendment. On behalf of the appellant Mr. Swaminathan raised the objection that the point was not taken up by the respondent in the High Court, nor was there any reference to it in the statement of the case filed by the respondent. It was also contended that the point raised was outside the scope of the questions of law referred by the Appellate Tribunal to the High Court. We do not think there is any substance in the objection raised on behalf of the appellant. One of the questions referred to the High Court is "whether on the facts in the circumstances of the case, the assessment made is saved from the bar of limitation under the second proviso to Section 34 (3)?"It is true that the impact of the Amending Act, l959 (Act 1 of 1959) was not raised before the Appellate Tribunal or before the High Court, but it is not a separate question by itself and is only an aspect of the question of limitation which has already been referred by the Appellate Tribunal to the High Court. As pointed out in Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 = (AIR 1961 SC 1633 ) the question of law referred to the High Court under Section 66 may be a simple one having its impact on one point, or it might be a complex one, involving more than one aspect and requiring to be tackled from different standpoints. All that Section 66 (1) requires is that the question of law which is referred to the High Court and which the High Court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the Section that the reference should be limited to those aspects of the question which had been argued before the Tribunal, and it will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question far the purpose of S. 66 (1) of the Act.In our opinion, the argument of the respondent with regard to the legal effect of the Amending Act of 1959 (Act 1 of 1959) is within the frame-work of the question already referred to the High Court and it is therefore competent to this Court, in a case of this description, to allow a new contention to be advanced. 5. It is, however, necessary that the case should be remanded to the High Court for examining the question of law referred to it after considering the impact of the Amending Act of 1959 (Act 1 of l959). | 1[ds]It follows therefore that the view taken by the High Court in the present case is not correct in law and must be overruledWe do not think there is any substance in the objection raised on behalf of the appellantIt is true that the impact of the Amending Act, l959 (Act 1 of 1959) was not raised before the Appellate Tribunal or before the High Court, but it is not a separate question by itself and is only an aspect of the question of limitation which has already been referred by the Appellate Tribunal to the High CourtWhere the question itself was under issue, there is no further limitation imposed by the Section that the reference should be limited to those aspects of the question which had been argued before the Tribunal, and it will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question far the purpose of S. 66 (1) of the Act.In our opinion, the argument of the respondent with regard to the legal effect of the Amending Act of 1959 (Act 1 of 1959) is within the frame-work of the question already referred to the High Court and it is therefore competent to this Court, in a case of this description, to allow a new contention to be advanced5. It is, however, necessary that the case should be remanded to the High Court for examining the question of law referred to it after considering the impact of the Amending Act of 1959 (Act 1 of l959). | 1 | 2,405 | 282 | ### 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:
reference the effect of Section 2 of the Income-tax (Amendment) Act (Act I of 1959) must be taken into consideration and in view of the amendment made by that Section of the amending Act the question referred to the High Court must be answered necessarily against the appellant. Section 2 of the Amendment Act, 1959 inserted in Section 34 of the Act a new sub-section (4) which provides:"A notice under clause (a) of sub-section (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of Section 18 of the Finance Act, 1956 (18 of 1956), had expired in respect of the year to which the notice relates." Section 4 of the Amending Act, 1959 read as follows:"No notice issued under clause (a) of sub-section (1) of Section 34 of the principal Act at any time before the commencement of this Act and no assessment, re-assessment or settlement made or other proceeding taken in consequence of such notice shall be called in question in any court, tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re-assessment was made the time within which such notice should have been issued or the assessment or re-assessment should have been made under that Section as in force before its amendment by clause (a) of Section 18 of the Finance Act, 1956 (18 of 1956), had expired". Mr. Veda Vyas referred to the decision of the Bombay High Court in Onkarmal Meghraj v. Commr. of Income-tax, Bombay-1, (1960) 38 ITR 369 = (AIR 1960 Bom 163 ) in which it was held that there was nothing in Section 2 or 4 of the Amending Act of 1959 to restrict the terms of the words "at any time" occurring in Section 4 of that Act as meaning "at any time after April 1, 1956", viz., the date on which the amendments made by the Finance Act, 1956, came into force and there was nothing in the provisions of the Amendment Act of 1959 which limited the retrospective operation of Section 4. It was also held that since the enactment of the Amendment Act of 1959 a notice issued after April 1, 1956, for reopening an assessment, by virtue of Section 4, could not be permitted to be called in question on the ground that the notice was not issued within the period prescribed by the unamended Section 34 (1) (a). On behalf of the respondent reference was also made to the decision of this Court in S. C. Prashar v. Vasantsen Dwarkadas, (1963) 49 ITR (SC) 1 = (AIR 1963 SC 1356 ), in which it was held that Section 4 of the Amendment Act, 1959 operated on and validated notices issued under Section 34 (1) (a) as amended in 1948 even earlier than April 1, 1956, in other words in respect of assessment years prior to March 31, 1956, and therefore notices issued under S. 34(1)(a) of the Income-tax Act before April 1, 1956, could not be challenged on the ground that they were issued beyond the time limit of eight years from the respective assessment years prescribed by the 1948 amendment. On behalf of the appellant Mr. Swaminathan raised the objection that the point was not taken up by the respondent in the High Court, nor was there any reference to it in the statement of the case filed by the respondent. It was also contended that the point raised was outside the scope of the questions of law referred by the Appellate Tribunal to the High Court. We do not think there is any substance in the objection raised on behalf of the appellant. One of the questions referred to the High Court is "whether on the facts in the circumstances of the case, the assessment made is saved from the bar of limitation under the second proviso to Section 34 (3)?"It is true that the impact of the Amending Act, l959 (Act 1 of 1959) was not raised before the Appellate Tribunal or before the High Court, but it is not a separate question by itself and is only an aspect of the question of limitation which has already been referred by the Appellate Tribunal to the High Court. As pointed out in Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR 589 = (AIR 1961 SC 1633 ) the question of law referred to the High Court under Section 66 may be a simple one having its impact on one point, or it might be a complex one, involving more than one aspect and requiring to be tackled from different standpoints. All that Section 66 (1) requires is that the question of law which is referred to the High Court and which the High Court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the Section that the reference should be limited to those aspects of the question which had been argued before the Tribunal, and it will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question far the purpose of S. 66 (1) of the Act.In our opinion, the argument of the respondent with regard to the legal effect of the Amending Act of 1959 (Act 1 of 1959) is within the frame-work of the question already referred to the High Court and it is therefore competent to this Court, in a case of this description, to allow a new contention to be advanced. 5. It is, however, necessary that the case should be remanded to the High Court for examining the question of law referred to it after considering the impact of the Amending Act of 1959 (Act 1 of l959).
### Response:
1
### Explanation:
It follows therefore that the view taken by the High Court in the present case is not correct in law and must be overruledWe do not think there is any substance in the objection raised on behalf of the appellantIt is true that the impact of the Amending Act, l959 (Act 1 of 1959) was not raised before the Appellate Tribunal or before the High Court, but it is not a separate question by itself and is only an aspect of the question of limitation which has already been referred by the Appellate Tribunal to the High CourtWhere the question itself was under issue, there is no further limitation imposed by the Section that the reference should be limited to those aspects of the question which had been argued before the Tribunal, and it will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question far the purpose of S. 66 (1) of the Act.In our opinion, the argument of the respondent with regard to the legal effect of the Amending Act of 1959 (Act 1 of 1959) is within the frame-work of the question already referred to the High Court and it is therefore competent to this Court, in a case of this description, to allow a new contention to be advanced5. It is, however, necessary that the case should be remanded to the High Court for examining the question of law referred to it after considering the impact of the Amending Act of 1959 (Act 1 of l959).
|
Commissioner Of Commercial Tax U.P Vs. M/S A.R. Thermosets (Pvt.) Ltd | 4 SCC 85 )stating that residuary Entry is made to cover only those category of goods which clearly fall outside the ambit of the main Entry. The opinion proceeds further to state that unless the Revenue can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be made to the residuary Entry.23. In this context, reference to the authority in Commercial Taxes Officer v. Jalani Enterprises (2011) 4 SCC 386 ) would be profitable. While dealing with the question of sales tax/VAT under the Rajasthan Sales Tax Act, it was held that if from records it was established that the product in question could be brought under a specific Entry, then there was no reason to take resort to the residuary Entry. Revenue cannot be permitted to travel to the residuary Entry when a product can be covered under a specific Entry.24. In the present context, when the word “bitumen” has been used as a generic expression, it would be erroneous not to cover a product that is only a type or form of bitumen and retains all its essential characteristics, and treat it as covered by the residuary Entry by some kind of ingenuous reasoning. Taking it outside the purview of the specific Entry is incorrect.25. At this juncture, we may refer to certain pronouncements commended to us by the learned counsel for the appellant. In Collector of Customs and others v. Kumudam Publications (P) Limited and others (1998) 9 SCC 339 ), while adverting to the issue of classification it has been held that it would not be correct to say that in no case can the end use or function of the goods be relevant in the question of classification, as was held in Indian Tool Manufacturers v. Asstt. Collector of Central Excise, Nasik and others (1994) Supp (3) SCC 632). The decision in Commissioner of Central Excise, Cochin v. Mannampalakkal Rubber Latex Works (2007) 217 ELT 161 (SC))emphasizes and holds that in the matters of classification, “composition test” is important test and the “end user test” would only apply if the Entry says so. We have referred to the aforesaid authorities for sake of completeness only because we have applied the “composition test” as well as the “commercial or common parlance” test in addition to the “end use test”.26. Reliance placed by the Revenue on the decision in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh and another (1981) 3 SCC 578 ), is of no assistance, for in the context of the particular notification it was held that aluminium ingots, billet, roll products, extrusion, etc. would not be covered by the exemption, which was granted to all kinds of minerals, ore, metals or alloys, including sheets and circles used in the manufacture of brasswares and scraps. In this context, referring to Section 3A of the U.P. Sales Tax Act and the notification as applicable, it was held that the earlier notifications issued from time to time would show that the expression “metal” had been employed with reference to metal in its primary sense. The principle laid down in the said authority is in the context in issue and is based upon the schematic arrangement indicated and specified in the notification under consideration therein. That apart, the said decision also emphasizes that a word describing a commodity in a sales tax statute should be interpreted according to its popular sense and words of everyday use must be construed not in their scientific or technical sense, but as understood in common parlance.27. We have also been commended to a judgment of the Customs, Excise and Service Tax Appellate Tribunal in Allied Bitumen Complex (India) Private Limited v. Collector of Central Excise, Calcutta – 1 (1997) 90 ELT 374 (Tribunal), which holds that conversion of bitumen into bitumen aqueous emulsion amounts to manufacture. Per contra, the respondent-assessee has relied on judgment of the Karnataka High Court in SR Projects Limited v. Commissioner of Commercial Taxes (2013) 63 VST 49 (Kar). However, it is not necessary to dilate on the said aspect for there is a distinction between what can be regarded as manufacture under the Excise Act and what is the sale or transfer of property in goods under the Sales Tax Act and the Value Added Tax Act. In M.P. Agencies v. State of Kerala (2015) 7 SCC 102 ), it has been held that the decisions under the Excise Act may have some play and relevance, but the question of manufacture by itself would not be per se relevant under the Sales Tax or Value Added Tax Act. Thus, there is a distinction between what is exigible to tax under the excise law and the incidence of tax when the legislation relates to sales or value added tax. What is relevant is the classification. In this context, the verdict in Osnar Chemical Private Limited (supra) is significant. The said authority refers to two other variants of bitumen, namely, polymer modified bitumen and crumbled rubber modified bitumen which are created by the process of mixing of polymer and additive to bitumen. It has been held that the aforesaid processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied.28. In view of the aforesaid analysis, we find the view expressed by the High Court to be absolutely flawless and, accordingly, we concur with it. | 0[ds]24. In the present context, when the wordhas been used as a generic expression, it would be erroneous not to cover a product that is only a type or form of bitumen and retains all its essential characteristics, and treat it as covered by the residuary Entry by some kind of ingenuous reasoning. Taking it outside the purview of the specific Entry isthere is a distinction between what is exigible to tax under the excise law and the incidence of tax when the legislation relates to sales or value added tax. What is relevant is the classification.said authority refers to two other variants of bitumen, namely, polymer modified bitumen and crumbled rubber modified bitumen which are created by the process of mixing of polymer and additive to bitumen. It has been held that the aforesaid processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied.28. In view of the aforesaid analysis, we find the view expressed by the High Court to be absolutely flawless and, accordingly, we concur with it. | 0 | 4,915 | 291 | ### 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:
4 SCC 85 )stating that residuary Entry is made to cover only those category of goods which clearly fall outside the ambit of the main Entry. The opinion proceeds further to state that unless the Revenue can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be made to the residuary Entry.23. In this context, reference to the authority in Commercial Taxes Officer v. Jalani Enterprises (2011) 4 SCC 386 ) would be profitable. While dealing with the question of sales tax/VAT under the Rajasthan Sales Tax Act, it was held that if from records it was established that the product in question could be brought under a specific Entry, then there was no reason to take resort to the residuary Entry. Revenue cannot be permitted to travel to the residuary Entry when a product can be covered under a specific Entry.24. In the present context, when the word “bitumen” has been used as a generic expression, it would be erroneous not to cover a product that is only a type or form of bitumen and retains all its essential characteristics, and treat it as covered by the residuary Entry by some kind of ingenuous reasoning. Taking it outside the purview of the specific Entry is incorrect.25. At this juncture, we may refer to certain pronouncements commended to us by the learned counsel for the appellant. In Collector of Customs and others v. Kumudam Publications (P) Limited and others (1998) 9 SCC 339 ), while adverting to the issue of classification it has been held that it would not be correct to say that in no case can the end use or function of the goods be relevant in the question of classification, as was held in Indian Tool Manufacturers v. Asstt. Collector of Central Excise, Nasik and others (1994) Supp (3) SCC 632). The decision in Commissioner of Central Excise, Cochin v. Mannampalakkal Rubber Latex Works (2007) 217 ELT 161 (SC))emphasizes and holds that in the matters of classification, “composition test” is important test and the “end user test” would only apply if the Entry says so. We have referred to the aforesaid authorities for sake of completeness only because we have applied the “composition test” as well as the “commercial or common parlance” test in addition to the “end use test”.26. Reliance placed by the Revenue on the decision in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh and another (1981) 3 SCC 578 ), is of no assistance, for in the context of the particular notification it was held that aluminium ingots, billet, roll products, extrusion, etc. would not be covered by the exemption, which was granted to all kinds of minerals, ore, metals or alloys, including sheets and circles used in the manufacture of brasswares and scraps. In this context, referring to Section 3A of the U.P. Sales Tax Act and the notification as applicable, it was held that the earlier notifications issued from time to time would show that the expression “metal” had been employed with reference to metal in its primary sense. The principle laid down in the said authority is in the context in issue and is based upon the schematic arrangement indicated and specified in the notification under consideration therein. That apart, the said decision also emphasizes that a word describing a commodity in a sales tax statute should be interpreted according to its popular sense and words of everyday use must be construed not in their scientific or technical sense, but as understood in common parlance.27. We have also been commended to a judgment of the Customs, Excise and Service Tax Appellate Tribunal in Allied Bitumen Complex (India) Private Limited v. Collector of Central Excise, Calcutta – 1 (1997) 90 ELT 374 (Tribunal), which holds that conversion of bitumen into bitumen aqueous emulsion amounts to manufacture. Per contra, the respondent-assessee has relied on judgment of the Karnataka High Court in SR Projects Limited v. Commissioner of Commercial Taxes (2013) 63 VST 49 (Kar). However, it is not necessary to dilate on the said aspect for there is a distinction between what can be regarded as manufacture under the Excise Act and what is the sale or transfer of property in goods under the Sales Tax Act and the Value Added Tax Act. In M.P. Agencies v. State of Kerala (2015) 7 SCC 102 ), it has been held that the decisions under the Excise Act may have some play and relevance, but the question of manufacture by itself would not be per se relevant under the Sales Tax or Value Added Tax Act. Thus, there is a distinction between what is exigible to tax under the excise law and the incidence of tax when the legislation relates to sales or value added tax. What is relevant is the classification. In this context, the verdict in Osnar Chemical Private Limited (supra) is significant. The said authority refers to two other variants of bitumen, namely, polymer modified bitumen and crumbled rubber modified bitumen which are created by the process of mixing of polymer and additive to bitumen. It has been held that the aforesaid processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied.28. In view of the aforesaid analysis, we find the view expressed by the High Court to be absolutely flawless and, accordingly, we concur with it.
### Response:
0
### Explanation:
24. In the present context, when the wordhas been used as a generic expression, it would be erroneous not to cover a product that is only a type or form of bitumen and retains all its essential characteristics, and treat it as covered by the residuary Entry by some kind of ingenuous reasoning. Taking it outside the purview of the specific Entry isthere is a distinction between what is exigible to tax under the excise law and the incidence of tax when the legislation relates to sales or value added tax. What is relevant is the classification.said authority refers to two other variants of bitumen, namely, polymer modified bitumen and crumbled rubber modified bitumen which are created by the process of mixing of polymer and additive to bitumen. It has been held that the aforesaid processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied.28. In view of the aforesaid analysis, we find the view expressed by the High Court to be absolutely flawless and, accordingly, we concur with it.
|
VIBHA BAKSHI GOKHALE Vs. M/S GRUHASHILP CONSTRUCTIONS | 1. The appellants have filed a complaint before the National Consumer Disputes Redressal Commission, complaining of a deficiency of service on the part of the respondents. The dispute pertains to a residential flat, which was allegedly booked by the appellants. On 15 February 2019, the NCDRC dismissed the complaint, in terms of the following directions:" Learned counsel for the complainant states that further time may be provided to him for filing the rejoinder and evidence in the matter. This consumer complaint is of 2016. The last order dated 16.11.2018, reads as under:"Complainant has not filed the rejoinder. Proxy counsel is present on behalf of the main counsel for the complainant. Last opportunity is granted to the complainant to file the rejoinder and evidence within a period of four weeks, failing which the complaint shall stand dismissed automatically.?In spite of the above order the complainant has not been able to file the rejoinder and affidavit of evidence. It seems that the complainant may not be having any merit in his case that is why there has been delay in filing rejoinder and evidence.As per the order dated 16.11.2018, the matter already stands dismissed and, therefore, no further opportunity can be provided for filing the rejoinder and evidence. Accordingly, the file be consigned to record room.?2. We find that the ground for rejection of the complaint is technical and in disregard of the requirements of substantial justice. The purpose which Parliament sought to achieve by setting up the NCDRC is to protect the rights of consumers to seek access to justice under the Consumer Protection Act 1986. In the present case, there was a conditional order dated 16 November 2018 requiring the appellants to file a rejoinder and evidence within a period of four weeks, failing which the complaint was to stand dismissed automatically. On 15 February 2019, the NCDRC declined to grant any further time to the appellants and, proceeded to observe that it is perhaps because the appellants do not have any merit in the case, that there was a delay in filing a rejoinder and evidence. This inference was unwarranted.3. We are affirmatively of the view that orders of this nature detract from the true purpose for which the NCDRC has been established. The NCDRC should have borne this in mind instead of rejecting the complaint on a technicality. Such dismissals only add to the burden of litigation and defeat the purpose of ensuring justice in the consumer fora.4. We have also been repeatedly observing that marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of. Though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in the judicial process. The consumer fora should bear this in mind so that the ends of justice are not defeated. | 0[ds]2. We find that the ground for rejection of the complaint is technical and in disregard of the requirements of substantial justice. The purpose which Parliament sought to achieve by setting up the NCDRC is to protect the rights of consumers to seek access to justice under the Consumer Protection Act 1986. In the present case, there was a conditional order dated 16 November 2018 requiring the appellants to file a rejoinder and evidence within a period of four weeks, failing which the complaint was to stand dismissed automatically. On 15 February 2019, the NCDRC declined to grant any further time to the appellants and, proceeded to observe that it is perhaps because the appellants do not have any merit in the case, that there was a delay in filing a rejoinder and evidence. This inference was unwarranted.3. We are affirmatively of the view that orders of this nature detract from the true purpose for which the NCDRC has been established. The NCDRC should have borne this in mind instead of rejecting the complaint on a technicality. Such dismissals only add to the burden of litigation and defeat the purpose of ensuring justice in the consumer fora.4. We have also been repeatedly observing that marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of. Though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in the judicial process. The consumer fora should bear this in mind so that the ends of justice are not defeated. | 0 | 568 | 330 | ### 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. The appellants have filed a complaint before the National Consumer Disputes Redressal Commission, complaining of a deficiency of service on the part of the respondents. The dispute pertains to a residential flat, which was allegedly booked by the appellants. On 15 February 2019, the NCDRC dismissed the complaint, in terms of the following directions:" Learned counsel for the complainant states that further time may be provided to him for filing the rejoinder and evidence in the matter. This consumer complaint is of 2016. The last order dated 16.11.2018, reads as under:"Complainant has not filed the rejoinder. Proxy counsel is present on behalf of the main counsel for the complainant. Last opportunity is granted to the complainant to file the rejoinder and evidence within a period of four weeks, failing which the complaint shall stand dismissed automatically.?In spite of the above order the complainant has not been able to file the rejoinder and affidavit of evidence. It seems that the complainant may not be having any merit in his case that is why there has been delay in filing rejoinder and evidence.As per the order dated 16.11.2018, the matter already stands dismissed and, therefore, no further opportunity can be provided for filing the rejoinder and evidence. Accordingly, the file be consigned to record room.?2. We find that the ground for rejection of the complaint is technical and in disregard of the requirements of substantial justice. The purpose which Parliament sought to achieve by setting up the NCDRC is to protect the rights of consumers to seek access to justice under the Consumer Protection Act 1986. In the present case, there was a conditional order dated 16 November 2018 requiring the appellants to file a rejoinder and evidence within a period of four weeks, failing which the complaint was to stand dismissed automatically. On 15 February 2019, the NCDRC declined to grant any further time to the appellants and, proceeded to observe that it is perhaps because the appellants do not have any merit in the case, that there was a delay in filing a rejoinder and evidence. This inference was unwarranted.3. We are affirmatively of the view that orders of this nature detract from the true purpose for which the NCDRC has been established. The NCDRC should have borne this in mind instead of rejecting the complaint on a technicality. Such dismissals only add to the burden of litigation and defeat the purpose of ensuring justice in the consumer fora.4. We have also been repeatedly observing that marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of. Though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in the judicial process. The consumer fora should bear this in mind so that the ends of justice are not defeated.
### Response:
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### Explanation:
2. We find that the ground for rejection of the complaint is technical and in disregard of the requirements of substantial justice. The purpose which Parliament sought to achieve by setting up the NCDRC is to protect the rights of consumers to seek access to justice under the Consumer Protection Act 1986. In the present case, there was a conditional order dated 16 November 2018 requiring the appellants to file a rejoinder and evidence within a period of four weeks, failing which the complaint was to stand dismissed automatically. On 15 February 2019, the NCDRC declined to grant any further time to the appellants and, proceeded to observe that it is perhaps because the appellants do not have any merit in the case, that there was a delay in filing a rejoinder and evidence. This inference was unwarranted.3. We are affirmatively of the view that orders of this nature detract from the true purpose for which the NCDRC has been established. The NCDRC should have borne this in mind instead of rejecting the complaint on a technicality. Such dismissals only add to the burden of litigation and defeat the purpose of ensuring justice in the consumer fora.4. We have also been repeatedly observing that marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of. Though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in the judicial process. The consumer fora should bear this in mind so that the ends of justice are not defeated.
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Joseph Pothen Vs. State of Kerala | the Central Act LXXI of 1951. The State Act, therefore, survived even after the passing of the said Central Act. 9. The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed the Central Act LXXI of 1951. Under S. 3 thereof all ancient, and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act. Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under S. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance. If so, that Act also did not replace the State Act in regard to the monument in question. 10. For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid. 11. The next argument of the learned counsel may be briefly stated thus: The disputed wall is not an ancient monument, but an archaeological site or remains; the said matter as covered by Entry 40 of the Concurrent List (List III) of the Seventh Schedule to the Constitution; when Act VII of 1904 was extended by Part B State (Laws) Act III of 1951 to the Travancore area, it occupied practically the entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act. 12. Assuming that that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains. The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M. E.) and that in the Central Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both - on which we do not express any opinion-the State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act. But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monuments is good, as we have held it to be, the impugned notification was validly issued thereunder. 13. The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments and archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List. 14. The dictionary meaning of the two expressions also brings out the distinction between the two concepts, "Monument" is derived from monere which means to remind, to warn. "Monument" means, among others, "a structure surviving from a former period"; whereas "archaeology" is the scientific study of the life and culture of ancient peoples. Archaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples. The two expressions, therefore, bear different meanings. Though the demarcating line may be thin in a rare case, the distinction is clear. 15. The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument. The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property. He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act. Nor did he argue before the High Court to that effect. In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid. The present argument is only an afterthought. 16. The extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period. For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under S. 3 of the State Regulation I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall. Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder. 17. In this view, it is not necessary to express our opinion on the question whether Art. 363 of the Constitution is a bar to the maintainability of the petition. | 0[ds]The petitioner filed O. P. No. 1502 of 1960 in the High Court of Kerala at Ernakulam for a relief similar to that now sought in this petition. The said petition came up before Vaidialingam, J., who dismissed that petition on the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under Art. 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit. When an appeal was filed against that order, a Division Bench of the High Court, consisting of Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court. It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioners contentions, but dismissed the petition for the reason that the petitioner had an effective remedy by way of a suit. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right. If by a final decision of a competent Court his title, to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it. In that context the doctrine of res judicata may be invoked. But where there is no such decision at all, there is no scope to call in its aid. We, therefore, reject this contentionIt is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall. We are, therefore, withholding our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof. Indeed, the fact that he is in possession has been admitted by the State in its counter-affidavit. It is stated therein that the petitioner has "intermeddled" with the wall. The petitioner has possessory title in the wall and is, therefore, entitled to be protected against interference with that right without the sanction of lawThat Act applied to ancient and historical monuments referred to or specified in Part I of the Schedule thereto which had been declared to be of national importance. In Part I of the Schedule to the said Act certain monuments in the District of Trichur in the Travancore-Cochin State were specified. The monument in question was not included in the said Schedule. The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951. The State Act, therefore, survived even after the passing of the said Central Act9. The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed the Central Act LXXI of 1951. Under S. 3 thereof all ancient, and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act. Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under S. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance. If so, that Act also did not replace the State Act in regard to the monument in question10. For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid12. Assuming that that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains. The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M. E.) and that in the Central Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both - on which we do not express any opinion-the State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act. But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monuments is good, as we have held it to be, the impugned notification was validly issued thereunder13. The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments and archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List14. The dictionary meaning of the two expressions also brings out the distinction between the two concepts, "Monument" is derived from monere which means to remind, to warn. "Monument" means, among others, "a structure surviving from a former period"; whereas "archaeology" is the scientific study of the life and culture of ancient peoples. Archaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples. The two expressions, therefore, bear different meanings. Though the demarcating line may be thin in a rare case, the distinction is clear15. The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument. The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property. He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act. Nor did he argue before the High Court to that effect. In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground thatthe Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid. The present argument is only an afterthought16. The extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period. For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under S. 3 of the State Regulation I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall. Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder17. In this view, it is not necessary to express our opinion on the question whether Art. 363 of the Constitution is a bar to the maintainability of the petition. | 0 | 3,482 | 1,508 | ### Instruction:
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the Central Act LXXI of 1951. The State Act, therefore, survived even after the passing of the said Central Act. 9. The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed the Central Act LXXI of 1951. Under S. 3 thereof all ancient, and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act. Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under S. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance. If so, that Act also did not replace the State Act in regard to the monument in question. 10. For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid. 11. The next argument of the learned counsel may be briefly stated thus: The disputed wall is not an ancient monument, but an archaeological site or remains; the said matter as covered by Entry 40 of the Concurrent List (List III) of the Seventh Schedule to the Constitution; when Act VII of 1904 was extended by Part B State (Laws) Act III of 1951 to the Travancore area, it occupied practically the entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act. 12. Assuming that that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains. The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M. E.) and that in the Central Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both - on which we do not express any opinion-the State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act. But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monuments is good, as we have held it to be, the impugned notification was validly issued thereunder. 13. The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments and archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List. 14. The dictionary meaning of the two expressions also brings out the distinction between the two concepts, "Monument" is derived from monere which means to remind, to warn. "Monument" means, among others, "a structure surviving from a former period"; whereas "archaeology" is the scientific study of the life and culture of ancient peoples. Archaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples. The two expressions, therefore, bear different meanings. Though the demarcating line may be thin in a rare case, the distinction is clear. 15. The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument. The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property. He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act. Nor did he argue before the High Court to that effect. In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid. The present argument is only an afterthought. 16. The extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period. For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under S. 3 of the State Regulation I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall. Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder. 17. In this view, it is not necessary to express our opinion on the question whether Art. 363 of the Constitution is a bar to the maintainability of the petition.
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has possessory title in the wall and is, therefore, entitled to be protected against interference with that right without the sanction of lawThat Act applied to ancient and historical monuments referred to or specified in Part I of the Schedule thereto which had been declared to be of national importance. In Part I of the Schedule to the said Act certain monuments in the District of Trichur in the Travancore-Cochin State were specified. The monument in question was not included in the said Schedule. The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951. The State Act, therefore, survived even after the passing of the said Central Act9. The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed the Central Act LXXI of 1951. Under S. 3 thereof all ancient, and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act. Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under S. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance. If so, that Act also did not replace the State Act in regard to the monument in question10. For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid12. Assuming that that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains. The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M. E.) and that in the Central Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both - on which we do not express any opinion-the State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act. But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monuments is good, as we have held it to be, the impugned notification was validly issued thereunder13. The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments and archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List14. The dictionary meaning of the two expressions also brings out the distinction between the two concepts, "Monument" is derived from monere which means to remind, to warn. "Monument" means, among others, "a structure surviving from a former period"; whereas "archaeology" is the scientific study of the life and culture of ancient peoples. Archaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples. The two expressions, therefore, bear different meanings. Though the demarcating line may be thin in a rare case, the distinction is clear15. The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument. The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property. He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act. Nor did he argue before the High Court to that effect. In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground thatthe Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid. The present argument is only an afterthought16. The extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period. For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under S. 3 of the State Regulation I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall. Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder17. In this view, it is not necessary to express our opinion on the question whether Art. 363 of the Constitution is a bar to the maintainability of the petition.
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Samarjit Ghosh Vs. Bennett Coleman and Company and Another | has remained unpaid by the employer should be made to the State Government, and provides that if the State Government is satisfied that any amount is so due it is empowered to issue a certificate for that amount to the Collector, and thereupon the Collector must proceed to recover that amount in the same manner as an arrear of land revenue. Which is the State Government to which such application lies is indicated by Rule 36 of the Rules made under the Act. Rule 36 provides that an application under s. 17 of the Act shall be made to the Government of the State where the Central Office or the Branch Office of the newspaper establishment in which the newspaper employee is employed is situated. It is the location of the Central Office or the Branch Office in which the newspaper employee is employed which determines which State Government it will be. The Rule works in favour of the convenience of the newspaper employees. Sub-sections (2) and (3) of s. 17 provide: "(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the Industrial Disputes Act, 1947 ( 14 of 1947) or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or la w shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law. (3) The decision of the Labour Court shall be forwarded by it to the State Government which made the reference and any amount found due by the Labour Court may be recovered in the manner provided in sub-section (1)."When all the provisions of s. 17 are considered together it is apparent that they constitute a single scheme. In simple terms the scheme is this. A newspaper employee, who claims that an amount due to him has not been p aid by his employer, can apply to the State Government for recovery of the amount. If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee. If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the application having been made before the appropriate State Government it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court. When the Labour Court has decided the question, it will forward its decision to the State Government which made the reference, and thereafter the State Government will direct that recovery proceedings shall be taken. In other words the State Government before whom the application for recovery is made is the State Government which will refer the question as to the amount due to a Labour Court, and the Labour Court upon reaching its decision will forward the decision to the State Government, which will then direct recovery of the amount." 4. Turning to the facts of the present case, it is clear that the application under sub-s. (1) of s. 17 was made on 29 April, 1975 when the appellant was employed at the Calcutta Branch of the employer company. He made the application to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages. When the question arose as to the amount due to the appellant, the Government of West Bengal made the reference for adjudication to the First Labour Court, West Bengal. Upon the construction of sub-s. (2) of s. 17 which has found favour with us, it is beyond dispute, we think, that t he Government of West Bengal is competent to make the reference. In our opinion the High Court erred in holding that the reference was without jurisdiction and that it was the State of Maharashtra which was competent to make the reference. The application for recovery was rightly made by the appellant before the Government of West Bengal because he was then employed by the Branch Office of the employer company, Calcutta. Once we hold that the application was rightly made before the Government of West Bengal, the further conclusion must necessarily follow that it was the Government of West Bengal which possessed the power to refer the question for adjudication. It seems to us that the High Court omitted to appreciate the inter-relationship between the different provisions of s. 17 and the fact that if the proceeding under sub-s. (1) of s. 17 was commenced rightly before a State Government it was that State Government alone which should make a reference to a Labour Court for adjudication.A number of cases have been placed before us, but we do not consider it necessary to refer to them having regard to the view taken by us upon a plain analysis of the statutory provisions. 5. We may note that the fundamental question before us is whether the Government of West Bengal was competent to make the reference. We do not consider it appropriate to decide any other questions arising upon the reference since the reference must, pursuant to this judgment, be considered to be pending still and those questions can be raised there. Our attention has been drawn by learned counsel for the employer company to an award of the Labour Court of West Bengal where, it is said, the question covered by the impugned reference has already been concluded on its merits. That is a submission which is open to the employer company during the proceedings before the Labour Court upon the impugned reference. We are concerned with a limited point and w e need go no further. 6. | 1[ds]Turning to the facts of the present case, it is clear that the application under sub-s. (1) of s. 17 was made on 29 April, 1975 when the appellant was employed at the Calcutta Branch of the employer company. He made the application to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages. When the question arose as to the amount due to the appellant, the Government of West Bengal made the reference for adjudication to the First Labour Court, West Bengal. Upon the construction of sub-s. (2) of s. 17 which has found favour with us, it is beyond dispute, we think, that t he Government of West Bengal is competent to make the reference. In our opinion the High Court erred in holding that the reference was without jurisdiction and that it was the State of Maharashtra which was competent to make the reference. The application for recovery was rightly made by the appellant before the Government of West Bengal because he was then employed by the Branch Office of the employer company, Calcutta. Once we hold that the application was rightly made before the Government of West Bengal, the further conclusion must necessarily follow that it was the Government of West Bengal which possessed the power to refer the question for adjudication. It seems to us that the High Court omitted to appreciate the inter-relationship between the different provisions of s. 17 and the fact that if the proceeding under sub-s. (1) of s. 17 was commenced rightly before a State Government it was that State Government alone which should make a reference to a Labour Court for adjudication.A number of cases have been placed before us, but we do not consider it necessary to refer to them having regard to the view taken by us upon a plain analysis of the statutorymay note that the fundamental question before us is whether the Government of West Bengal was competent to make the reference. We do not consider it appropriate to decide any other questions arising upon the reference since the reference must, pursuant to this judgment, be considered to be pending still and those questions can be raised there. Our attention has been drawn by learned counsel for the employer company to an award of the Labour Court of West Bengal where, it is said, the question covered by the impugned reference has already been concluded on its merits. That is a submission which is open to the employer company during the proceedings before the Labour Court upon the impugned reference. We are concerned with a limited point and w e need go no further. | 1 | 1,707 | 483 | ### Instruction:
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has remained unpaid by the employer should be made to the State Government, and provides that if the State Government is satisfied that any amount is so due it is empowered to issue a certificate for that amount to the Collector, and thereupon the Collector must proceed to recover that amount in the same manner as an arrear of land revenue. Which is the State Government to which such application lies is indicated by Rule 36 of the Rules made under the Act. Rule 36 provides that an application under s. 17 of the Act shall be made to the Government of the State where the Central Office or the Branch Office of the newspaper establishment in which the newspaper employee is employed is situated. It is the location of the Central Office or the Branch Office in which the newspaper employee is employed which determines which State Government it will be. The Rule works in favour of the convenience of the newspaper employees. Sub-sections (2) and (3) of s. 17 provide: "(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the Industrial Disputes Act, 1947 ( 14 of 1947) or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or la w shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law. (3) The decision of the Labour Court shall be forwarded by it to the State Government which made the reference and any amount found due by the Labour Court may be recovered in the manner provided in sub-section (1)."When all the provisions of s. 17 are considered together it is apparent that they constitute a single scheme. In simple terms the scheme is this. A newspaper employee, who claims that an amount due to him has not been p aid by his employer, can apply to the State Government for recovery of the amount. If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee. If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the application having been made before the appropriate State Government it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court. When the Labour Court has decided the question, it will forward its decision to the State Government which made the reference, and thereafter the State Government will direct that recovery proceedings shall be taken. In other words the State Government before whom the application for recovery is made is the State Government which will refer the question as to the amount due to a Labour Court, and the Labour Court upon reaching its decision will forward the decision to the State Government, which will then direct recovery of the amount." 4. Turning to the facts of the present case, it is clear that the application under sub-s. (1) of s. 17 was made on 29 April, 1975 when the appellant was employed at the Calcutta Branch of the employer company. He made the application to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages. When the question arose as to the amount due to the appellant, the Government of West Bengal made the reference for adjudication to the First Labour Court, West Bengal. Upon the construction of sub-s. (2) of s. 17 which has found favour with us, it is beyond dispute, we think, that t he Government of West Bengal is competent to make the reference. In our opinion the High Court erred in holding that the reference was without jurisdiction and that it was the State of Maharashtra which was competent to make the reference. The application for recovery was rightly made by the appellant before the Government of West Bengal because he was then employed by the Branch Office of the employer company, Calcutta. Once we hold that the application was rightly made before the Government of West Bengal, the further conclusion must necessarily follow that it was the Government of West Bengal which possessed the power to refer the question for adjudication. It seems to us that the High Court omitted to appreciate the inter-relationship between the different provisions of s. 17 and the fact that if the proceeding under sub-s. (1) of s. 17 was commenced rightly before a State Government it was that State Government alone which should make a reference to a Labour Court for adjudication.A number of cases have been placed before us, but we do not consider it necessary to refer to them having regard to the view taken by us upon a plain analysis of the statutory provisions. 5. We may note that the fundamental question before us is whether the Government of West Bengal was competent to make the reference. We do not consider it appropriate to decide any other questions arising upon the reference since the reference must, pursuant to this judgment, be considered to be pending still and those questions can be raised there. Our attention has been drawn by learned counsel for the employer company to an award of the Labour Court of West Bengal where, it is said, the question covered by the impugned reference has already been concluded on its merits. That is a submission which is open to the employer company during the proceedings before the Labour Court upon the impugned reference. We are concerned with a limited point and w e need go no further. 6.
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Turning to the facts of the present case, it is clear that the application under sub-s. (1) of s. 17 was made on 29 April, 1975 when the appellant was employed at the Calcutta Branch of the employer company. He made the application to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages. When the question arose as to the amount due to the appellant, the Government of West Bengal made the reference for adjudication to the First Labour Court, West Bengal. Upon the construction of sub-s. (2) of s. 17 which has found favour with us, it is beyond dispute, we think, that t he Government of West Bengal is competent to make the reference. In our opinion the High Court erred in holding that the reference was without jurisdiction and that it was the State of Maharashtra which was competent to make the reference. The application for recovery was rightly made by the appellant before the Government of West Bengal because he was then employed by the Branch Office of the employer company, Calcutta. Once we hold that the application was rightly made before the Government of West Bengal, the further conclusion must necessarily follow that it was the Government of West Bengal which possessed the power to refer the question for adjudication. It seems to us that the High Court omitted to appreciate the inter-relationship between the different provisions of s. 17 and the fact that if the proceeding under sub-s. (1) of s. 17 was commenced rightly before a State Government it was that State Government alone which should make a reference to a Labour Court for adjudication.A number of cases have been placed before us, but we do not consider it necessary to refer to them having regard to the view taken by us upon a plain analysis of the statutorymay note that the fundamental question before us is whether the Government of West Bengal was competent to make the reference. We do not consider it appropriate to decide any other questions arising upon the reference since the reference must, pursuant to this judgment, be considered to be pending still and those questions can be raised there. Our attention has been drawn by learned counsel for the employer company to an award of the Labour Court of West Bengal where, it is said, the question covered by the impugned reference has already been concluded on its merits. That is a submission which is open to the employer company during the proceedings before the Labour Court upon the impugned reference. We are concerned with a limited point and w e need go no further.
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The Swadeshi Cotton Mills Co. Limited Vs. The State Of U. P. And Others(And Connected Appeals) | precedent were fulfilled, but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complies with by the authority:(see the observations of Spens, C. J. in Emperor V. Sibnath Banerjee, 1944 FCR 1 at p. 42 : (AIR 1943 FC 75 at p. 92) which were approved by the Privy Council in Emperor v. Sibnath Banerjee 1945 FCR 195 at pp. 216-17: (AIR 1945 PC 156 at p. 161). Nor are we impressed with the contention of Shri Pathak that conditions become a part of legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is not desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order of satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March, 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under S. 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under S. 3 of the Act.12. It remains to consider certain cases cited by Shri Pathak in support of his contention. The first case to which reference may be made is Wichita Railroad and Light Co. v. Public Utilities Commission of State of Kansas. (1922) 67 Law Ed 124. That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public utility company could be changed. After referring to S. 13 of the Act under consideration, the U. S. S. C. held that"a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void."It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it.13. The next case is Mahler v. Eby, (1924) 68 Law Ed 549. That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Service made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of (1922) 67 Law Ed 124. This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and gave a reasonable time to the Secretary Labour to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them.14. The last case is Panama Refining Co v. A. D. Ryan, (1935) 79 Law Ed 446. In that case S. 9 (c) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation though it was further held that the executive order contained no finding and no statement of the ground of the Presidents action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall. | 0[ds]These observations have in our opinion nothing to do with such matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental matters when the words "place" and "person" are used therein. The place there must mean the area to which the legislation would apply; and so far as that is concerned, the legislature has determined the area in this case to which S. 3 will apply, namely, the whole of the State of Uttar Pradesh. Similarly, the word "Person" used there refers to persons to whom legislation will apply and that has also been determined by the legislature in this case, namely, it will apply to employers and employees of industrial concerns. We have already said that the conditions under which the order will be passed have also been set out in the opening part of S. 3 and how the Government will act is also set out, namely, by referring any industrial dispute that may arise for conciliation or adjudication. As to the power of the industrial court that in our opinion is also provided by S. 3, namely, that an industrial court will adjudicate on the industrial dispute referred to it. Therefore all that was left to the Government to provide was to set up machinery by means of a general order which has the force of subordinate rules to carry out that legislative policy which has been enacted in broad details in S. 3 and has been formally enacted into a binding rule of conduct. We are therefore of opinion that S. 3 is not unconstitutional in any manner for there is no delegation of essentials of legislative function thereunder. All that has been left to the Government by that section is to provide by subordinate rules for carrying out the purpose of the legislation. We must therefore reject the contention that S. 3 is unconstitutional on the ground that it suffers from the vice of excessivethere is no doubt that S. 3 gives power to the State Government to make certain provisions by general or special order, if in its opinion, it is necessary or expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment. The forming of such opinion is a condition precedent to the making of the order. The preamble to the second order also does not contain a recital that the State Government had formed such opinion before it made thepreamble to the second order also does not contain a recital that the State Government had formed such opinion before it made thethe State also filed no affidavit to show that the conditions precedent provided in Section 3 had been complied with, even though there was no recital thereof on the face of the order. We should have expected that even though the appellants did not file an affidavit; in support of their case on this aspect of the matter, the State would as a matter of precaution have filed an affidavit to indicate whether the conditions precedent set out in S. 3 had been complied with, considering that it was a general order which was being attacked under which a large number of adjudications must have taken place. The High Court has commented on his aspect of the matter and has said that the State Government did not file any affidavit in this connection to show that as a matter of fact the State Government was satisfied as required by S. 3 even though there was no recital of that satisfaction in the order itself. Taking into account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to file an affidavit before us even at this stage. Thereupon the State Government filed an affidavit sworn by the Secretary to Government, Labour Department. The affidavit says that the drafts of G. O. No. 615 and the consequential order G. O. No. 671 passed on March 15, 1951, were put up before the then Labour Minister. The said notifications were issued only after all the aspects of the matter were fully considered by the State Government and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing public convenience, and maintenance of public order and supplies and services essential to the community and for the maintenance of employment. We accept this affidavit and it follows therefore that the satisfaction required as a condition precedent for the issue of an order under S. 3 of the Act was in fact there before the order No. 615 was passed on March 15, 1951, followed by the consequential order No. 671 of the sameto this contention there can be no dispute.The power to pass an order under S. 3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arise and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact that order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.10. There is no doubt that where a statute requires that certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled. But it has been held in a number of cases dealing with executive orders that even if there is some lacuna of this kind, the order does not become ab initio invalid and the defect can be made good by filing an affidavit later on to show that the condition precedent was satisfied.We see no difficulty in following this principle in the case of those orders also which are in the nature of subordinate legislation. Whether orders are executive or in the nature of subordinate legislation their validity depends on certain conditions precedent being satisfied. If those conditions precedent are not recited on the face of the order and the fulfilment of the conditions precedent can be established to the satisfaction of the court in the case of executive orders we do not see why that can not be made good in the same way in the case of orders in the nature of subordinate legislation. We cannot accept the extreme argument of Shri Aggarwala that the mere fact that the order has been passed is sufficient to raise the presumption that conditions precedent have been satisfied, even though there is no recital in the order to that effect. Such a presumption in our opinion can only be raised when there is a recital in the order to that effect. In the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the court by other means that the conditions precedent were satisfied before the order was passed. We are equally not impressed by Shri Pathaks argument that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and therefore it is not necessary that there must be a recital on the face of the order in such a case before it can be held to be legal. The presumption as to the regularity of public acts would apply in such a case; but as soon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with. The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled, but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complies with by the authority:(see the observations of Spens, C. J. in Emperor V. Sibnath Banerjee, 1944 FCR 1 at p. 42 : (AIR 1943 FC 75 at p. 92) which were approved by the Privy Council in Emperor v. Sibnath Banerjee 1945 FCR 195 at pp. 216-17: (AIR 1945 PC 156 at p. 161). Nor are we impressed with the contention of Shri Pathak that conditions become a part of legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is not desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order of satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March, 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under S. 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under S. 3 of thefirst case to which reference may be made is Wichita Railroad and Light Co. v. Public Utilities Commission of State of Kansas. (1922) 67 Law Ed 124. That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public utility company could be changed. After referring to S. 13 of the Act under consideration, the U. S. S. C. held that"a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void."It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it.13. The next case is Mahler v. Eby, (1924) 68 Law Ed 549. That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Service made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of (1922) 67 Law Ed 124. This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and gave a reasonable time to the Secretary Labour to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them.14. The last case is Panama Refining Co v. A. D. Ryan, (1935) 79 Law Ed 446. In that case S. 9 (c) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation though it was further held that the executive order contained no finding and no statement of the ground of the Presidents action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall. | 0 | 5,282 | 2,716 | ### Instruction:
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precedent were fulfilled, but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complies with by the authority:(see the observations of Spens, C. J. in Emperor V. Sibnath Banerjee, 1944 FCR 1 at p. 42 : (AIR 1943 FC 75 at p. 92) which were approved by the Privy Council in Emperor v. Sibnath Banerjee 1945 FCR 195 at pp. 216-17: (AIR 1945 PC 156 at p. 161). Nor are we impressed with the contention of Shri Pathak that conditions become a part of legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is not desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order of satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March, 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under S. 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under S. 3 of the Act.12. It remains to consider certain cases cited by Shri Pathak in support of his contention. The first case to which reference may be made is Wichita Railroad and Light Co. v. Public Utilities Commission of State of Kansas. (1922) 67 Law Ed 124. That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public utility company could be changed. After referring to S. 13 of the Act under consideration, the U. S. S. C. held that"a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void."It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it.13. The next case is Mahler v. Eby, (1924) 68 Law Ed 549. That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Service made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of (1922) 67 Law Ed 124. This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and gave a reasonable time to the Secretary Labour to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them.14. The last case is Panama Refining Co v. A. D. Ryan, (1935) 79 Law Ed 446. In that case S. 9 (c) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation though it was further held that the executive order contained no finding and no statement of the ground of the Presidents action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall.
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on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled, but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complies with by the authority:(see the observations of Spens, C. J. in Emperor V. Sibnath Banerjee, 1944 FCR 1 at p. 42 : (AIR 1943 FC 75 at p. 92) which were approved by the Privy Council in Emperor v. Sibnath Banerjee 1945 FCR 195 at pp. 216-17: (AIR 1945 PC 156 at p. 161). Nor are we impressed with the contention of Shri Pathak that conditions become a part of legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is not desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order of satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March, 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under S. 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under S. 3 of thefirst case to which reference may be made is Wichita Railroad and Light Co. v. Public Utilities Commission of State of Kansas. (1922) 67 Law Ed 124. That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public utility company could be changed. After referring to S. 13 of the Act under consideration, the U. S. S. C. held that"a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void."It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it.13. The next case is Mahler v. Eby, (1924) 68 Law Ed 549. That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Service made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of (1922) 67 Law Ed 124. This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and gave a reasonable time to the Secretary Labour to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them.14. The last case is Panama Refining Co v. A. D. Ryan, (1935) 79 Law Ed 446. In that case S. 9 (c) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation though it was further held that the executive order contained no finding and no statement of the ground of the Presidents action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall.
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Koteswar Vittal Kamath Vs. K. Rangapa Baliga & Co | are those which were adopted by the Lok Sabha on 28th March, 1957. Rules 64 to 73 deal with the introduction and publication of Bills, and Rules 74 to 78 with motions after introduction of Bills. Rules relating to amendments to clauses, etc. and consideration of Bill are Nos. 79 to 92. Rule 65 (2) ensures compliance with the proviso to Article 304 of the Constitution where it is applicable by laying down that:"If the Bill is a Bill which under the Constitution cannot be introduced without the previous sanction or recommendation of the President, the member shall annex to the notice such sanction or recommendation conveyed through a Minister, and the notice shall not be vaild until this requirement is complied with."Similarly, Rule 81 deals with the procedure when an amendment is moved by laying down that:"If any member desires to move an amendment which under the Constitution cannot be moved without the previous sanction or recommendation of the President, he shall annex to the notice required by these rules such sanction or recommendation conveyed through a Minister and the notice shall not be valid until this requirement is complied with."Thus, the requirement of previous sanction of the President under the proviso to Article 304. has to be satisfied by producing the sanction either before introducing the Bill or before moving amendment, as the case may be.14. Rules relating to Select Committees on Bill are Nos. 298 to 305, amongst which Rule 300 is of importance and may be reproduced:"300. (1) If notice of a proposed amendment has not been given before the day on which the Bill is taken up by the Select Committee, any member may object to the moving of the amendment and such objection shall prevail unless the Chairman allows the amendment to be moved.(2). In other respects, the procedure in a Select Committee shall, as far as practicable, be the same as is followed in the House during the consideration stage of a Bill, with such adaptations, whether by way of modification, addition or omission, as the Speaker may consider necessary or convenient."This Rule makes it clear that, before a Bill can be modified or redrafted by the Select Committee, amendments have to be moved by the members of the Committee and, when any amendment is moved, the procedure in the Selection Committee is to be the same as is followed in the House during the consideration stage of a Bill as far as practicable, though subject to such adaptations as the Speaker may consider necessary or convenient. This Rule, thus, envisages that the requirement of Rule 81 in respect of an amendment moved in the House will have to be complied with when a similar amendment is moved in the Select Committee.Learned Counsel appearing for the respondent urged that, in interpreting Rule 300, we should not enlarge its scope so as to include in it the applicability of inch Rules as Rule 81 which, according to him, can only be attracted when an amendment is moved in the House of the Legislature itself. Even if this submission were to be accepted by us, it appears that it will not be possible to evade the applicability of the proviso to Article 304, because, when the Bill as reported by the Select Committee comes before the House again, the Minister-anchorage or the member moving the Bill will have to move the Bill for consideration in the House. At that stage, when he moves the Bill for consideration of the House in the modified or redrafted form, the move made by him will amount to moving the original Bill with the amendments reported by the Select Committee. In such a case, obviously Rule 81 would apply at that state, so that, before the modified or amended Bill is moved in the House for consideration, the sanction of the President will have to be produced if the modification or redraft has the result of incorporating an amendment covered by the proviso to Article 304. In these circumstances, we do not think that the language of the proviso requires to be interpreted in the manner accepted by the Full Bench of High Court of TravancoreCochin in the case of Ulahannan Mathai v. State (supra). The proviso will have to be complied with at the initial stage of the introduction of the Bill if it is applicable at that stage, whereas compliance will be required either at the stage when amendments are moved in the Select Committee, or when the Bill as reported by the Select Committee is moved in the House for consideration, because of the requirement that no amendment can be moved without the previous sanction of the President.In the present case, the original introduction of the Bill was valid because, at that state, the proviso to Article 304 was not in force at all as the Constitution had not yet come into force, while, subsequently, when the Bill was pending in the State Legislature, no amendment was moved in respect of which sanction of the President was required under the proviso. Section 3 of Act of 1950 was passed by the House as it was contained originally in the validly introduced Bill and cannot, therefore, be held to be void for non-compliance with the proviso to Article 304. This section being valid, either the Prohibition Order of 119 or the Prohibition Order of 1950 must be held to have been validly continued in force by this Act 5 of 1950 and to have continued to remain in force thereafter under the proviso to Section 17 (4) of the Essential Supplies (Temporary Powers) Act 24 of 1946. Under either of those Orders, the transactions entered into between the appellant and the respondent were prohibited and, having been entered into against the provisions of law, no party can claim any rights in respect of the three contracts in suit. The claim for damages for breach of those contracts by the respondent against the appellant was therefore, not maintainable. | 1[ds]6. The question of validity of the contracts, in these circumstances, will clearly depend on whether future contracts in coconut oil were prohibited by any law or orders or notifications which continued in force in 1952 after the Essential Supplies (Temporary Powers) Act 24 of1946 had come into force in the State of Travancore-Cochin on 17th August, 1950.This opens the question whether any prohibitory order was validly in force on the 17th August, 1950. In turn, the answer to this question will depend on whether a valid prohibitory order was in force on 30th March, 1950 which could continue in force under Section 73 (2) of Act 5 of 1950. The only two earlier prohibitory orders were the Prohibition Order of ll19 and the Prohibition Order ofappears to us that, in the present case, we need not express anyopinion on this question.If it is held that the Government of Travancore-Cochin was competent to pass this Prohibition Order of 1950, because the power was derived under Act 8 of l122 which was validly in force in the State on 8th March, 1950, then that would be the Order which would continue in force under Section 73 (2) of Act 5 of 1950. On the other hand, if it be held that the State Government could not competently pass the Prohibition Order of 1950, because it was a piece of legislation on forward contracts, that Order would have to be treated as void and non est Thereupon, the earlier Prohibition Order of ll19 would continue in force right up to 30th March, 1950.Act 8 of l122 had continued in force the Prohibition Order of ll19 with the qualification that it was to remain in force until it was superseded or modified by the competent authority under the provisions of this Act 8 of 1l22. When the prohibition Order of 1950 was purported to be issued on 8th March, 1950, it was not laid down that it was being issued so as to supersede the earlier Prohibition Order of 1119.If it had been a valid Order, it would have covered the same field as the Prohibition Order of ll19 and, consequently, would have been the effective Order under which the rights, and obligations of parties had to be governed.The first point that was urged by learned counsel or the appellant was that Section 3 of Act 5 of 1950 did not require compliance with the proviso, because it was not a piece of legislation for purposes of Clause (b) of Article304; but we are unable to see any force in this submission. It is enough to refer to Cl. (f) of Section 3 (2) which is the provision under which a Prohibition Under relating to Forward Contracts could have been passed, and the Prohibition Order of 1119 or the Prohibition Order of 1950 can be held to be continued in force, Under Section 3 (2) (f), power is conferred on the State Government to make an order which may provide for regulating or prohibiting any class of commercial or financial transactions relating to any essential article which, in the opinion of the Government, are or if unregulated are likely to be, detrimental to public interest. An Order prohibiting Forward Contracts would clearly be an Order prohibiting a class of commercial transactions relating to an essential article which, in this case, was coconut oil. The conferment of power on a State Government to prohibit such transactions cleraly permits imposition of restrictions on the freedom of trade or commerce and, therefore, falls within the scope of clause (b) of Art. 304 of the Constitution. This argument advanced on behalf of the appellant must, consequently, be rejected. However, the question that has to be further examined is whether this Act 5 of 1950 was void, because the provisions of the proviso to Article 304 were attracted and the Act was passed without complying with the requirements of the proviso.9. It appears that the Bill, which emerged ultimately as Act 5 of 1950, was first introduced in the Legislative Assembly of the State of 13th December, 1949, and was referred to a Select Committee on 14th December 1949. That was at a time when the Constitution had not come into force and there was no requirement underthe Government of India Act, 1935, which was applicable, similar to that laid down by the proviso to Article 304. The Bill was subsequently modified and redrafted by the Select Committee and was presented before the Assembly on 23rd March, 1950 after the Constitution had come into force. The Minister-in-charge moved that the Bill be taken into consideration, whereuopn discussion on the Bill proceeded and it was finally passed by the Assembly on 29th March, 1950. The Bill received the assent of the Raj Pramukh of the State and was brought into force, having been published by notification dated 30th March, 1950. Thepoint urged on behalf of the appellant was that the Bill was introduced in the State Legislature on a date prior to the date of the Constitution when Article 304 and the proviso to it had not come into force, so that no prior sanction of the President was required for introduction of the Bill.The Bill having been validly introduced remained pending in the State Legislature under Art .389 and the proceedings taken in the Legislature before the Constitution came into force were to be deemed to have been taken in the Legislature of the State which became seized of the Bill after the enforcement of the Constitution. It was further urged that no amendment was moved in the State Legislature after the Constitution came into force which could be hit by the restriction laid down in Article 304 (b) of the Constitution. The material provisions, including Section 3 were enacted in the original form in which the Bill had already been introduced in December, 1949. In these circumstances, it was submitted that no occasion arose for complying with the requirements of the proviso. The Bill was validly introduced without the previous sanction of the President and no amendment was moved subsequently to that Bill requiring the Presidents sanction after the Constitution came into force so that Act 5 of 1950 as passed by the Legislature on 29th March, 1950 and brought into force on 30th March, 1950 cannot be held to be void for non-compliance with the requirements of the proviso to ArticleCourt based its decision on the view that, if the interpretation urged before it was accepted, it would be possible to introduce a Bill which required no presidential sanction, get it amended by a Select Committee in such a way as to make it require the Presidential sanction in case it was originally introduced in the amended form and then pass it into law, and thus escape the necessity for the prior Presidential sanction provided by Article 304 of the Constitution. It was held that there can be no doubt that such a result could never have been intended by the makers of the Constitution.In our opinion, the High Court did not correctly appreciate the position. The language of the proviso cannot be interpreted in the manner accepted by the High Court without doing violence to the rules of construction. If both the words "introduced" or "moved" are held to refer to the word it must necessarily be held that both those words will also refer to the word "amendment." On the face of it, there can be no question of introducing an amendment. Amendments are moved and then, if accepted by the House, incorporated in the Bill before it is passed. There is further an indication in the Constitution itself that wherever a reference is made to a Bill the only step envisaged is introduction of the Bill. There is no reference to such a step as a Bill being moved. The articles, of which notice may be taken in this connection, are Articles 109, 114,117, 198, and 207. In all these Articles to the introduction of a Bill in the Legislature. There is no reference at any stage to a Bill being moved in a House. The language thus used in the Constitution clearly points to the interpretaion that, even in the proviso to Article 304 the word "introduced" refers to the Bill while the word "moved" refers to the amendment.12. So far as the danger of evasion of this proviso envisaged by the High Court is concerned, it appears that the High Court ignored the circumstance that, even when the Bill is before a Select Committee, it continues to be pending in the House, so that, if it is modified or redrafted, there is amendment of the Bill at that stage. If an amendment is introduced at that stage while it is under consideration of the Select Committee, the proviso may become applicable and, for a valid proposal to introduce such an amendment in the Select Committee, prior sanction of the President will beRule makes it clear that, before a Bill can be modified or redrafted by the Select Committee, amendments have to be moved by the members of the Committee and, when any amendment is moved, the procedure in the Selection Committee is to be the same as is followed in the House during the consideration stage of a Bill as far as practicable, though subject to such adaptations as the Speaker may consider necessary or convenient. This Rule, thus, envisages that the requirement of Rule 81 in respect of an amendment moved in the House will have to be complied with when a similar amendment is moved in the Select Committee.Learned Counsel appearing for the respondent urged that, in interpreting Rule 300, we should not enlarge its scope so as to include in it the applicability of inch Rules as Rule 81 which, according to him, can only be attracted when an amendment is moved in the House of the Legislature itself. Even if this submission were to be accepted by us, it appears that it will not be possible to evade the applicability of the proviso to Article 304, because, when the Bill as reported by the Select Committee comes before the House again, the Minister-anchorage or the member moving the Bill will have to move the Bill for consideration in the House. At that stage, when he moves the Bill for consideration of the House in the modified or redrafted form, the move made by him will amount to moving the original Bill with the amendments reported by the Select Committee. In such a case, obviously Rule 81 would apply at that state, so that, before the modified or amended Bill is moved in the House for consideration, the sanction of the President will have to be produced if the modification or redraft has the result of incorporating an amendment covered by the proviso to Article 304. In these circumstances, we do not think that the language of the proviso requires to be interpreted in the manner accepted by the Full Bench of High Court of TravancoreCochin in the case of Ulahannan Mathai v. State (supra). The proviso will have to be complied with at the initial stage of the introduction of the Bill if it is applicable at that stage, whereas compliance will be required either at the stage when amendments are moved in the Select Committee, or when the Bill as reported by the Select Committee is moved in the House for consideration, because of the requirement that no amendment can be moved without the previous sanction of the President.In the present case, the original introduction of the Bill was valid because, at that state, the proviso to Article 304 was not in force at all as the Constitution had not yet come into force, while, subsequently, when the Bill was pending in the State Legislature, no amendment was moved in respect of which sanction of the President was required under the proviso. Section 3 of Act of 1950 was passed by the House as it was contained originally in the validly introduced Bill and cannot, therefore, be held to be void for non-compliance with the proviso to Article 304. This section being valid, either the Prohibition Order of 119 or the Prohibition Order of 1950 must be held to have been validly continued in force by this Act 5 of 1950 and to have continued to remain in force thereafter under the proviso to Section 17 (4) of the Essential Supplies (Temporary Powers) Act 24 of 1946. Under either of those Orders, the transactions entered into between the appellant and the respondent were prohibited and, having been entered into against the provisions of law, no party can claim any rights in respect of the three contracts in suit. The claim for damages for breach of those contracts by the respondent against the appellant was therefore, not maintainable. | 1 | 6,672 | 2,348 | ### 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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are those which were adopted by the Lok Sabha on 28th March, 1957. Rules 64 to 73 deal with the introduction and publication of Bills, and Rules 74 to 78 with motions after introduction of Bills. Rules relating to amendments to clauses, etc. and consideration of Bill are Nos. 79 to 92. Rule 65 (2) ensures compliance with the proviso to Article 304 of the Constitution where it is applicable by laying down that:"If the Bill is a Bill which under the Constitution cannot be introduced without the previous sanction or recommendation of the President, the member shall annex to the notice such sanction or recommendation conveyed through a Minister, and the notice shall not be vaild until this requirement is complied with."Similarly, Rule 81 deals with the procedure when an amendment is moved by laying down that:"If any member desires to move an amendment which under the Constitution cannot be moved without the previous sanction or recommendation of the President, he shall annex to the notice required by these rules such sanction or recommendation conveyed through a Minister and the notice shall not be valid until this requirement is complied with."Thus, the requirement of previous sanction of the President under the proviso to Article 304. has to be satisfied by producing the sanction either before introducing the Bill or before moving amendment, as the case may be.14. Rules relating to Select Committees on Bill are Nos. 298 to 305, amongst which Rule 300 is of importance and may be reproduced:"300. (1) If notice of a proposed amendment has not been given before the day on which the Bill is taken up by the Select Committee, any member may object to the moving of the amendment and such objection shall prevail unless the Chairman allows the amendment to be moved.(2). In other respects, the procedure in a Select Committee shall, as far as practicable, be the same as is followed in the House during the consideration stage of a Bill, with such adaptations, whether by way of modification, addition or omission, as the Speaker may consider necessary or convenient."This Rule makes it clear that, before a Bill can be modified or redrafted by the Select Committee, amendments have to be moved by the members of the Committee and, when any amendment is moved, the procedure in the Selection Committee is to be the same as is followed in the House during the consideration stage of a Bill as far as practicable, though subject to such adaptations as the Speaker may consider necessary or convenient. This Rule, thus, envisages that the requirement of Rule 81 in respect of an amendment moved in the House will have to be complied with when a similar amendment is moved in the Select Committee.Learned Counsel appearing for the respondent urged that, in interpreting Rule 300, we should not enlarge its scope so as to include in it the applicability of inch Rules as Rule 81 which, according to him, can only be attracted when an amendment is moved in the House of the Legislature itself. Even if this submission were to be accepted by us, it appears that it will not be possible to evade the applicability of the proviso to Article 304, because, when the Bill as reported by the Select Committee comes before the House again, the Minister-anchorage or the member moving the Bill will have to move the Bill for consideration in the House. At that stage, when he moves the Bill for consideration of the House in the modified or redrafted form, the move made by him will amount to moving the original Bill with the amendments reported by the Select Committee. In such a case, obviously Rule 81 would apply at that state, so that, before the modified or amended Bill is moved in the House for consideration, the sanction of the President will have to be produced if the modification or redraft has the result of incorporating an amendment covered by the proviso to Article 304. In these circumstances, we do not think that the language of the proviso requires to be interpreted in the manner accepted by the Full Bench of High Court of TravancoreCochin in the case of Ulahannan Mathai v. State (supra). The proviso will have to be complied with at the initial stage of the introduction of the Bill if it is applicable at that stage, whereas compliance will be required either at the stage when amendments are moved in the Select Committee, or when the Bill as reported by the Select Committee is moved in the House for consideration, because of the requirement that no amendment can be moved without the previous sanction of the President.In the present case, the original introduction of the Bill was valid because, at that state, the proviso to Article 304 was not in force at all as the Constitution had not yet come into force, while, subsequently, when the Bill was pending in the State Legislature, no amendment was moved in respect of which sanction of the President was required under the proviso. Section 3 of Act of 1950 was passed by the House as it was contained originally in the validly introduced Bill and cannot, therefore, be held to be void for non-compliance with the proviso to Article 304. This section being valid, either the Prohibition Order of 119 or the Prohibition Order of 1950 must be held to have been validly continued in force by this Act 5 of 1950 and to have continued to remain in force thereafter under the proviso to Section 17 (4) of the Essential Supplies (Temporary Powers) Act 24 of 1946. Under either of those Orders, the transactions entered into between the appellant and the respondent were prohibited and, having been entered into against the provisions of law, no party can claim any rights in respect of the three contracts in suit. The claim for damages for breach of those contracts by the respondent against the appellant was therefore, not maintainable.
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304 of the Constitution. It was held that there can be no doubt that such a result could never have been intended by the makers of the Constitution.In our opinion, the High Court did not correctly appreciate the position. The language of the proviso cannot be interpreted in the manner accepted by the High Court without doing violence to the rules of construction. If both the words "introduced" or "moved" are held to refer to the word it must necessarily be held that both those words will also refer to the word "amendment." On the face of it, there can be no question of introducing an amendment. Amendments are moved and then, if accepted by the House, incorporated in the Bill before it is passed. There is further an indication in the Constitution itself that wherever a reference is made to a Bill the only step envisaged is introduction of the Bill. There is no reference to such a step as a Bill being moved. The articles, of which notice may be taken in this connection, are Articles 109, 114,117, 198, and 207. In all these Articles to the introduction of a Bill in the Legislature. There is no reference at any stage to a Bill being moved in a House. The language thus used in the Constitution clearly points to the interpretaion that, even in the proviso to Article 304 the word "introduced" refers to the Bill while the word "moved" refers to the amendment.12. So far as the danger of evasion of this proviso envisaged by the High Court is concerned, it appears that the High Court ignored the circumstance that, even when the Bill is before a Select Committee, it continues to be pending in the House, so that, if it is modified or redrafted, there is amendment of the Bill at that stage. If an amendment is introduced at that stage while it is under consideration of the Select Committee, the proviso may become applicable and, for a valid proposal to introduce such an amendment in the Select Committee, prior sanction of the President will beRule makes it clear that, before a Bill can be modified or redrafted by the Select Committee, amendments have to be moved by the members of the Committee and, when any amendment is moved, the procedure in the Selection Committee is to be the same as is followed in the House during the consideration stage of a Bill as far as practicable, though subject to such adaptations as the Speaker may consider necessary or convenient. This Rule, thus, envisages that the requirement of Rule 81 in respect of an amendment moved in the House will have to be complied with when a similar amendment is moved in the Select Committee.Learned Counsel appearing for the respondent urged that, in interpreting Rule 300, we should not enlarge its scope so as to include in it the applicability of inch Rules as Rule 81 which, according to him, can only be attracted when an amendment is moved in the House of the Legislature itself. Even if this submission were to be accepted by us, it appears that it will not be possible to evade the applicability of the proviso to Article 304, because, when the Bill as reported by the Select Committee comes before the House again, the Minister-anchorage or the member moving the Bill will have to move the Bill for consideration in the House. At that stage, when he moves the Bill for consideration of the House in the modified or redrafted form, the move made by him will amount to moving the original Bill with the amendments reported by the Select Committee. In such a case, obviously Rule 81 would apply at that state, so that, before the modified or amended Bill is moved in the House for consideration, the sanction of the President will have to be produced if the modification or redraft has the result of incorporating an amendment covered by the proviso to Article 304. In these circumstances, we do not think that the language of the proviso requires to be interpreted in the manner accepted by the Full Bench of High Court of TravancoreCochin in the case of Ulahannan Mathai v. State (supra). The proviso will have to be complied with at the initial stage of the introduction of the Bill if it is applicable at that stage, whereas compliance will be required either at the stage when amendments are moved in the Select Committee, or when the Bill as reported by the Select Committee is moved in the House for consideration, because of the requirement that no amendment can be moved without the previous sanction of the President.In the present case, the original introduction of the Bill was valid because, at that state, the proviso to Article 304 was not in force at all as the Constitution had not yet come into force, while, subsequently, when the Bill was pending in the State Legislature, no amendment was moved in respect of which sanction of the President was required under the proviso. Section 3 of Act of 1950 was passed by the House as it was contained originally in the validly introduced Bill and cannot, therefore, be held to be void for non-compliance with the proviso to Article 304. This section being valid, either the Prohibition Order of 119 or the Prohibition Order of 1950 must be held to have been validly continued in force by this Act 5 of 1950 and to have continued to remain in force thereafter under the proviso to Section 17 (4) of the Essential Supplies (Temporary Powers) Act 24 of 1946. Under either of those Orders, the transactions entered into between the appellant and the respondent were prohibited and, having been entered into against the provisions of law, no party can claim any rights in respect of the three contracts in suit. The claim for damages for breach of those contracts by the respondent against the appellant was therefore, not maintainable.
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G. Ramesh Vs. Kanike Harish Kumar Ujwal and Ors | is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include a firm. 12. The issue is whether there are sufficient averments in the complaint to meet the requirement of Section 141(1). This is a matter which has to be determined on a holistic reading of the complaint. From the averments in the complaint, the case of the complainant is that the partnership firm of which the first Respondent is a partner had obtained contracts for data entry, which were being sub-contracted to the complainant. The Accused an alleged to have obtained a caution deposit of Rs. 1,00,000 and to have assigned the job of data entry to the complainant. After completing the job of data entry, the Accused issued two cheques dated 1 November 2010 and 18 December 2010 for the amount of Rs. 2,00,000 and Rs. 2,50,000 respectively. On presentation, the cheques were returned due to insufficiency of funds. It was thereafter that the first Respondent is alleges to have transferred an amount of Rs. 1,00,000 from his account on 8 February 2011 and 10 February 2011. The complaint contains the statement that the parties are related. Thereafter, two further cheques were issued by the managing partner on 30 May 2011 and 19 July 2011 each in the amount of Rs. 2,00,000. After the cheques were returned unpaid due to insufficiency of funds, the complainant is alleges to have informed the Accused and who are stated to have assured him that both the cheques would be honoured on re-presentation in the month of July 2011. 13. The submission is that the above averments are adequate to meet the requirements of Section 141 having regard to the fact that the first Accused is a partnership firm. 14. While laying down the general principles which must apply to this body of law, a two-Judge Bench of this Court in Gunmala Sales Private Limited (supra) held: "30. When a petition is filed for quashing the process, in a given case, on an overall reading of the complaint, the High Court may find that the basic averment is sufficient, that it makes out a case against the Director; that there is nothing to suggest that the substratum of the allegation against the Director is destroyed rendering the basic averment insufficient and that since offence is made out against him, his further role can be brought out in the trial. In another case, the High Court may quash the complaint despite the basic averment. It may come across some unimpeachable evidence or acceptable circumstances which may in its opinion lead to a conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time and therefore making him stand the trial would be an abuse of process of court as no offence is made out against him. 31. When in view of the basic averment process is issued the complaint must proceed against the Directors. But, if any Director wants the process to be quashed by filing a petition Under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint it must be shown that no offence is made out at all against the Director." 15. In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the Accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the Accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated. 16. The complaint contains a recital of the fact that the first set of cheques were returned for insufficiency of funds. It is alleged that the first Respondent transferred an amount of Rs. 1,00,000 on 8 February 2011 and 10 February 2011. The complaint also contains an averment that after the second set of cheques were dishonoured, the Accused assured the complainant that they will be honoured on re-presentation in the month of July 2011. The averments are sufficient to meet the requirement of Section 141(1). 17. The High Court proceeded on the basis that the first Accused was a company in which the other two Accused were directors. Section 141 undoubtedly uses the expression "company" so as to include a firm or association of persons. The fact that the first accused, in the present case, is a partnership firm of which the remaining two Accused are partners has been missed by the High Court. 18. Be that as it may, for the reasons adduced above, we have come to the conclusion that the High Court was in error in quashing the criminal case against the first Respondent. | 1[ds]11. In determining as to whether the requirements of the above provision have been fulfilled, it is necessary to bear in mind the principle of law that a partnership is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include athe averments in the complaint, the case of the complainant is that the partnership firm of which the first Respondent is a partner had obtained contracts for data entry, which were being sub-contracted to the complainant. The Accused an alleged to have obtained a caution deposit of Rs. 1,00,000 and to have assigned the job of data entry to the complainant. After completing the job of data entry, the Accused issued two cheques dated 1 November 2010 and 18 December 2010 for the amount of Rs. 2,00,000 and Rs. 2,50,000 respectively. On presentation, the cheques were returned due to insufficiency of funds. It was thereafter that the first Respondent is alleges to have transferred an amount of Rs. 1,00,000 from his account on 8 February 2011 and 10 February 2011. The complaint contains the statement that the parties are related. Thereafter, two further cheques were issued by the managing partner on 30 May 2011 and 19 July 2011 each in the amount of Rs. 2,00,000. After the cheques were returned unpaid due to insufficiency of funds, the complainant is alleges to have informed the Accused and who are stated to have assured him that both the cheques would be honoured on re-presentation in the month of July 2011.The submission is that the above averments are adequate to meet the requirements of Section 141 having regard to the fact that the first Accused is a partnership firm.In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the Accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the Accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated.The complaint contains a recital of the fact that the first set of cheques were returned for insufficiency of funds. It is alleged that the first Respondent transferred an amount of Rs. 1,00,000 on 8 February 2011 and 10 February 2011. The complaint also contains an averment that after the second set of cheques were dishonoured, the Accused assured the complainant that they will be honoured on re-presentation in the month of July 2011. The averments are sufficient to meet the requirement of Section 141(1).The High Court proceeded on the basis that the first Accused was a company in which the other two Accused were directors. Section 141 undoubtedly uses the expression "company" so as to include a firm or association of persons. The fact that the first accused, in the present case, is a partnership firm of which the remaining two Accused are partners has been missed by the High Court.Be that as it may, for the reasons adduced above, we have come to the conclusion that the High Court was in error in quashing the criminal case against the first Respondent. | 1 | 2,813 | 652 | ### 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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is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include a firm. 12. The issue is whether there are sufficient averments in the complaint to meet the requirement of Section 141(1). This is a matter which has to be determined on a holistic reading of the complaint. From the averments in the complaint, the case of the complainant is that the partnership firm of which the first Respondent is a partner had obtained contracts for data entry, which were being sub-contracted to the complainant. The Accused an alleged to have obtained a caution deposit of Rs. 1,00,000 and to have assigned the job of data entry to the complainant. After completing the job of data entry, the Accused issued two cheques dated 1 November 2010 and 18 December 2010 for the amount of Rs. 2,00,000 and Rs. 2,50,000 respectively. On presentation, the cheques were returned due to insufficiency of funds. It was thereafter that the first Respondent is alleges to have transferred an amount of Rs. 1,00,000 from his account on 8 February 2011 and 10 February 2011. The complaint contains the statement that the parties are related. Thereafter, two further cheques were issued by the managing partner on 30 May 2011 and 19 July 2011 each in the amount of Rs. 2,00,000. After the cheques were returned unpaid due to insufficiency of funds, the complainant is alleges to have informed the Accused and who are stated to have assured him that both the cheques would be honoured on re-presentation in the month of July 2011. 13. The submission is that the above averments are adequate to meet the requirements of Section 141 having regard to the fact that the first Accused is a partnership firm. 14. While laying down the general principles which must apply to this body of law, a two-Judge Bench of this Court in Gunmala Sales Private Limited (supra) held: "30. When a petition is filed for quashing the process, in a given case, on an overall reading of the complaint, the High Court may find that the basic averment is sufficient, that it makes out a case against the Director; that there is nothing to suggest that the substratum of the allegation against the Director is destroyed rendering the basic averment insufficient and that since offence is made out against him, his further role can be brought out in the trial. In another case, the High Court may quash the complaint despite the basic averment. It may come across some unimpeachable evidence or acceptable circumstances which may in its opinion lead to a conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time and therefore making him stand the trial would be an abuse of process of court as no offence is made out against him. 31. When in view of the basic averment process is issued the complaint must proceed against the Directors. But, if any Director wants the process to be quashed by filing a petition Under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint it must be shown that no offence is made out at all against the Director." 15. In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the Accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the Accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated. 16. The complaint contains a recital of the fact that the first set of cheques were returned for insufficiency of funds. It is alleged that the first Respondent transferred an amount of Rs. 1,00,000 on 8 February 2011 and 10 February 2011. The complaint also contains an averment that after the second set of cheques were dishonoured, the Accused assured the complainant that they will be honoured on re-presentation in the month of July 2011. The averments are sufficient to meet the requirement of Section 141(1). 17. The High Court proceeded on the basis that the first Accused was a company in which the other two Accused were directors. Section 141 undoubtedly uses the expression "company" so as to include a firm or association of persons. The fact that the first accused, in the present case, is a partnership firm of which the remaining two Accused are partners has been missed by the High Court. 18. Be that as it may, for the reasons adduced above, we have come to the conclusion that the High Court was in error in quashing the criminal case against the first Respondent.
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1
### Explanation:
11. In determining as to whether the requirements of the above provision have been fulfilled, it is necessary to bear in mind the principle of law that a partnership is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include athe averments in the complaint, the case of the complainant is that the partnership firm of which the first Respondent is a partner had obtained contracts for data entry, which were being sub-contracted to the complainant. The Accused an alleged to have obtained a caution deposit of Rs. 1,00,000 and to have assigned the job of data entry to the complainant. After completing the job of data entry, the Accused issued two cheques dated 1 November 2010 and 18 December 2010 for the amount of Rs. 2,00,000 and Rs. 2,50,000 respectively. On presentation, the cheques were returned due to insufficiency of funds. It was thereafter that the first Respondent is alleges to have transferred an amount of Rs. 1,00,000 from his account on 8 February 2011 and 10 February 2011. The complaint contains the statement that the parties are related. Thereafter, two further cheques were issued by the managing partner on 30 May 2011 and 19 July 2011 each in the amount of Rs. 2,00,000. After the cheques were returned unpaid due to insufficiency of funds, the complainant is alleges to have informed the Accused and who are stated to have assured him that both the cheques would be honoured on re-presentation in the month of July 2011.The submission is that the above averments are adequate to meet the requirements of Section 141 having regard to the fact that the first Accused is a partnership firm.In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the Accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the Accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated.The complaint contains a recital of the fact that the first set of cheques were returned for insufficiency of funds. It is alleged that the first Respondent transferred an amount of Rs. 1,00,000 on 8 February 2011 and 10 February 2011. The complaint also contains an averment that after the second set of cheques were dishonoured, the Accused assured the complainant that they will be honoured on re-presentation in the month of July 2011. The averments are sufficient to meet the requirement of Section 141(1).The High Court proceeded on the basis that the first Accused was a company in which the other two Accused were directors. Section 141 undoubtedly uses the expression "company" so as to include a firm or association of persons. The fact that the first accused, in the present case, is a partnership firm of which the remaining two Accused are partners has been missed by the High Court.Be that as it may, for the reasons adduced above, we have come to the conclusion that the High Court was in error in quashing the criminal case against the first Respondent.
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Punjab State Electricity Board Vs. M/s. SIEL Ltd. & Others | is normally known as ideal situation test. Such test as indicated above has no place in the case of commercial evaluation.12. In the case of industrial and domestic consumers, the exact figures are known because meters are there. It is pointed out that the technical loss is fixed at 15% whereas at the distribution level it is 10 to 11% and 4 to 5% loss on account of transmission.13. So far as the commercial losses and un-metered agricultural consumers are concerned, the same cannot be precisely quantified for the losses.14. It is to be noted that when the Boards stand was that the loss is less than the national level load factor and the energy input is best in the country, the High Court again proceeded to apply the ideal situation test to say that there was scope for improvement and found no defect in the conclusions of the Commission by stating that the production should be optimum.15. The cross subsidy is an accepted principle. In Hindustan Zinc Ltd. etc. etc. v. Andhra Pradesh State Electricity Board and Ors. (1991 (4) SCC 299) in para 33 it was observed as follows: "33. Shri Kapil Sibal appearing on behalf of some of the appellants confined the challenge to the mode of exercise of power by the Board. He laid great emphasis on the effect of absence of consultation with the Consultative Committee under Section 16 of the Electricity. (Supply) Act, 1948. He also claimed that the quantum of increase could at best be justified only to the extent of one-half and no more. Shri Sibal claimed that certain extraneous factors had been taken into account for the purpose of revising the tariffs. The irrelevant considerations, according to Shri Sibal, taken into account are the capital sums owed by the Board and the overall losses incurred by the Board which according to him is impermissible under Section 59 of the Electricity (Supply) Act. He also argued that the upward revision of HT tariffs is intended to subsidies another class of consumers which is not permissible. His arguments are already covered by our earlier discussion. Similarly, the arguments of Shri K.N. Bhat, for the appellant in C.A. No. 5379 of 1985 to the same effect need no further discussion. The details of the several factors taken into account for the revision in tariffs, to the limited extent they can be gone into within the permissible scope of judicial review in such a manner also do not require any further consideration." 16. The observations of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002 (8) SCC 715 ) need to be noted: "91. A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same". 17. In Association of Industrial Electricity Users v. State of A.P. and Ors. (2002 (3) SCC 711 ) also the position was examined in detail.18. We make it clear that actual expenditure has to be the basis and not the hypothetical ideal situation. Ideal situation is essentially contemplation of the future. Additionally, the computation of input is the actual cost on the basis of per unit.19. Since the High Courts approach is not correct and analysis was not done in the correct prospective, we set aside the order of the High Court and remit the matter to the Commission to examine the matter afresh keeping in view the parameters of 2003 Act in the light of what has been stated above on specific issues. | 1[ds]11. In relation to agricultural meter and T&D losses it is to be noted that in the past agricultural consumers were not having meters. Therefore, per force estimate had to be done. The Commission fixed 25.52% to be T& D losses. The High Court proceeded on the basis that meters should have been there. In the absence of meters, the consumers should not suffer. This is what is normally known as ideal situation test. Such test as indicated above has no place in the case of commercial evaluation.12. In the case of industrial and domestic consumers, the exact figures are known because meters are there. It is pointed out that the technical loss is fixed at 15% whereas at the distribution level it is 10 to 11% and 4 to 5% loss on account of transmission.13. So far as the commercial losses and un-metered agricultural consumers are concerned, the same cannot be precisely quantified for the losses.14. It is to be noted that when the Boards stand was that the loss is less than the national level load factor and the energy input is best in the country, the High Court again proceeded to apply the ideal situation test to say that there was scope for improvement and found no defect in the conclusions of the Commission by stating that the production should be optimum.15. The cross subsidy is an accepted principle. In Hindustan Zinc Ltd. etc. etc. v. Andhra Pradesh State Electricity Board and Ors. (1991 (4) SCC 299) in para 33 it was observed asShri Kapil Sibal appearing on behalf of some of the appellants confined the challenge to the mode of exercise of power by the Board. He laid great emphasis on the effect of absence of consultation with the Consultative Committee under Section 16 of the Electricity. (Supply) Act, 1948. He also claimed that the quantum of increase could at best be justified only to the extent of one-half and no more. Shri Sibal claimed that certain extraneous factors had been taken into account for the purpose of revising the tariffs. The irrelevant considerations, according to Shri Sibal, taken into account are the capital sums owed by the Board and the overall losses incurred by the Board which according to him is impermissible under Section 59 of the Electricity (Supply) Act. He also argued that the upward revision of HT tariffs is intended to subsidies another class of consumers which is not permissible. His arguments are already covered by our earlier discussion. Similarly, the arguments of Shri K.N. Bhat, for the appellant in C.A. No. 5379 of 1985 to the same effect need no further discussion. The details of the several factors taken into account for the revision in tariffs, to the limited extent they can be gone into within the permissible scope of judicial review in such a manner also do not require any further consideration.The observations of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002 (8) SCC 715 ) need to beA perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same".In Association of Industrial Electricity Users v. State of A.P. and Ors. (2002 (3) SCC 711 ) also the position was examined in detail.18. We make it clear that actual expenditure has to be the basis and not the hypothetical ideal situation. Ideal situation is essentially contemplation of the future. Additionally, the computation of input is the actual cost on the basis of per unit.19. Since the High Courts approach is not correct and analysis was not done in the correct prospective, we set aside the order of the High Court and remit the matter to the Commission to examine the matter afresh keeping in view the parameters of 2003 Act in the light of what has been stated above on specific issues. | 1 | 2,233 | 1,172 | ### 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:
is normally known as ideal situation test. Such test as indicated above has no place in the case of commercial evaluation.12. In the case of industrial and domestic consumers, the exact figures are known because meters are there. It is pointed out that the technical loss is fixed at 15% whereas at the distribution level it is 10 to 11% and 4 to 5% loss on account of transmission.13. So far as the commercial losses and un-metered agricultural consumers are concerned, the same cannot be precisely quantified for the losses.14. It is to be noted that when the Boards stand was that the loss is less than the national level load factor and the energy input is best in the country, the High Court again proceeded to apply the ideal situation test to say that there was scope for improvement and found no defect in the conclusions of the Commission by stating that the production should be optimum.15. The cross subsidy is an accepted principle. In Hindustan Zinc Ltd. etc. etc. v. Andhra Pradesh State Electricity Board and Ors. (1991 (4) SCC 299) in para 33 it was observed as follows: "33. Shri Kapil Sibal appearing on behalf of some of the appellants confined the challenge to the mode of exercise of power by the Board. He laid great emphasis on the effect of absence of consultation with the Consultative Committee under Section 16 of the Electricity. (Supply) Act, 1948. He also claimed that the quantum of increase could at best be justified only to the extent of one-half and no more. Shri Sibal claimed that certain extraneous factors had been taken into account for the purpose of revising the tariffs. The irrelevant considerations, according to Shri Sibal, taken into account are the capital sums owed by the Board and the overall losses incurred by the Board which according to him is impermissible under Section 59 of the Electricity (Supply) Act. He also argued that the upward revision of HT tariffs is intended to subsidies another class of consumers which is not permissible. His arguments are already covered by our earlier discussion. Similarly, the arguments of Shri K.N. Bhat, for the appellant in C.A. No. 5379 of 1985 to the same effect need no further discussion. The details of the several factors taken into account for the revision in tariffs, to the limited extent they can be gone into within the permissible scope of judicial review in such a manner also do not require any further consideration." 16. The observations of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002 (8) SCC 715 ) need to be noted: "91. A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same". 17. In Association of Industrial Electricity Users v. State of A.P. and Ors. (2002 (3) SCC 711 ) also the position was examined in detail.18. We make it clear that actual expenditure has to be the basis and not the hypothetical ideal situation. Ideal situation is essentially contemplation of the future. Additionally, the computation of input is the actual cost on the basis of per unit.19. Since the High Courts approach is not correct and analysis was not done in the correct prospective, we set aside the order of the High Court and remit the matter to the Commission to examine the matter afresh keeping in view the parameters of 2003 Act in the light of what has been stated above on specific issues.
### Response:
1
### Explanation:
of meters, the consumers should not suffer. This is what is normally known as ideal situation test. Such test as indicated above has no place in the case of commercial evaluation.12. In the case of industrial and domestic consumers, the exact figures are known because meters are there. It is pointed out that the technical loss is fixed at 15% whereas at the distribution level it is 10 to 11% and 4 to 5% loss on account of transmission.13. So far as the commercial losses and un-metered agricultural consumers are concerned, the same cannot be precisely quantified for the losses.14. It is to be noted that when the Boards stand was that the loss is less than the national level load factor and the energy input is best in the country, the High Court again proceeded to apply the ideal situation test to say that there was scope for improvement and found no defect in the conclusions of the Commission by stating that the production should be optimum.15. The cross subsidy is an accepted principle. In Hindustan Zinc Ltd. etc. etc. v. Andhra Pradesh State Electricity Board and Ors. (1991 (4) SCC 299) in para 33 it was observed asShri Kapil Sibal appearing on behalf of some of the appellants confined the challenge to the mode of exercise of power by the Board. He laid great emphasis on the effect of absence of consultation with the Consultative Committee under Section 16 of the Electricity. (Supply) Act, 1948. He also claimed that the quantum of increase could at best be justified only to the extent of one-half and no more. Shri Sibal claimed that certain extraneous factors had been taken into account for the purpose of revising the tariffs. The irrelevant considerations, according to Shri Sibal, taken into account are the capital sums owed by the Board and the overall losses incurred by the Board which according to him is impermissible under Section 59 of the Electricity (Supply) Act. He also argued that the upward revision of HT tariffs is intended to subsidies another class of consumers which is not permissible. His arguments are already covered by our earlier discussion. Similarly, the arguments of Shri K.N. Bhat, for the appellant in C.A. No. 5379 of 1985 to the same effect need no further discussion. The details of the several factors taken into account for the revision in tariffs, to the limited extent they can be gone into within the permissible scope of judicial review in such a manner also do not require any further consideration.The observations of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002 (8) SCC 715 ) need to beA perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same".In Association of Industrial Electricity Users v. State of A.P. and Ors. (2002 (3) SCC 711 ) also the position was examined in detail.18. We make it clear that actual expenditure has to be the basis and not the hypothetical ideal situation. Ideal situation is essentially contemplation of the future. Additionally, the computation of input is the actual cost on the basis of per unit.19. Since the High Courts approach is not correct and analysis was not done in the correct prospective, we set aside the order of the High Court and remit the matter to the Commission to examine the matter afresh keeping in view the parameters of 2003 Act in the light of what has been stated above on specific issues.
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THE STATE OF TAMIL NADU Vs. P. K. SINHA | minimum of 48 hours notice shall be given for holding a meeting.2) In case, the State which is likely to be affected is not represented in the meeting, then the possibility of calling another meeting will be examined by the Committee. Provided that if the situation is such that it is not possible to delay taking a decision, then the Committee may decide the issue by majority vote even in the absence of representative from the affected State.3) The quorum for meeting of Regulation Committee shall be six Members.4) All the Members including the Chairman and Member Secretary of the Committee shall have voting right; the Chairman shall also have a casting vote. Sd/- U.P. Singh Secretary Ministry of Water Resources, River Development & Ganga Rejuvenation, Govt. of India New Delhi-110001.?13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme.14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.16. Coming to the suggestion/objection in reference to clause 9(3)(iii) of the draft scheme, reliance has been placed on the recommendation made by the Assessors to the Tribunal forming part of the report of the Tribunal. The Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned senior counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No.47065 of 2018 and the affidavit filed on 7 th May, 2018 in M.A. No.934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I.As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch. | 1[ds]14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned senior counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No.47065 of 2018 and the affidavit filed on 7 th May, 2018 in M.A. No.934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I.As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch. | 1 | 7,711 | 725 | ### 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:
minimum of 48 hours notice shall be given for holding a meeting.2) In case, the State which is likely to be affected is not represented in the meeting, then the possibility of calling another meeting will be examined by the Committee. Provided that if the situation is such that it is not possible to delay taking a decision, then the Committee may decide the issue by majority vote even in the absence of representative from the affected State.3) The quorum for meeting of Regulation Committee shall be six Members.4) All the Members including the Chairman and Member Secretary of the Committee shall have voting right; the Chairman shall also have a casting vote. Sd/- U.P. Singh Secretary Ministry of Water Resources, River Development & Ganga Rejuvenation, Govt. of India New Delhi-110001.?13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme.14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.16. Coming to the suggestion/objection in reference to clause 9(3)(iii) of the draft scheme, reliance has been placed on the recommendation made by the Assessors to the Tribunal forming part of the report of the Tribunal. The Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned senior counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No.47065 of 2018 and the affidavit filed on 7 th May, 2018 in M.A. No.934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I.As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch.
### Response:
1
### Explanation:
14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned senior counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No.47065 of 2018 and the affidavit filed on 7 th May, 2018 in M.A. No.934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I.As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch.
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State of Punjab & Another Vs. Rajesh Kumar & Others | time to time.”12. This Court in the judgment of Dinesh Singh Chauhan held that Regulation 9 is a self contained code for admissions to postgraduate medical courses. There is no doubt that the proviso to Regulation 9 (IV) is an enabling provision. The State Government has the liberty to provide for weightage in the marks to in-service doctors who have served in remote and difficult areas. There is no right which inheres in the government doctors to compel the State Government for providing the incentive. The controversy that arises in this case is whether the government can restrict the benefit of the incentive only to PCMS doctors working in government hospitals and exclude the Rural Medical Officers working in the Zila Parishads.13. As mentioned above, a Division Bench of the High Court in Dr. Manu Gupta v. State of Punjab and Ors. LPA No.1043 of 2013 and connected matters adjudicated the point of Rural Medical Officers satisfying the parameters of in-service doctors. It was held that the two services of PCMS doctors and Rural Medical Officers were different. Their service conditions were not the same and PCMS doctors belong to a State cadre whereas the Rural Medical Officers fall within the District cadre. It was further held that the policy decision taken by the Government not to equate Rural Medical Officers with the PCMS doctors was not arbitrary. The contention of the State was that Rural Medical Officers were working only in subsidiary health centres at the Zila Parishad level where there were no facilities for secondary and tertiary care. The decision of the Government that the funding for postgraduate studies was restricted only to PCMS doctors in view of their posting to District hospitals, sub divisional hospitals and other centres where facilities were available for secondary care. After examining the report submitted by the Chief Secretary, the High Court held that the Rural Medical Officers cannot claim parity with PCMS doctors and seek admission to post graduate courses from the in-service quota.14. The Government made the very same submissions before the High Court in CWP Nos.7026, 7089 and 7418 of 2017 filed by the Rural Medical Officers for extension of benefit of the incentive as per Regulation 9 of the MCI Regulations, 2000. The High Court held that the judgment in Dr. Manu Gupta’s case was not relevant for determination of the questions raised as Regulation 9 was not considered therein. The High Court rejected the submission made by the Government that the two services are different. In the impugned judgment, the High Court held that the health services rendered by Panchayati Raj Institutions complemented the health services provided by the State Government. The High Court observed that the laudable objective with which Regulation 9 was made would be defeated if Rural Medical Officers are not given the benefit of the incentive. The findings recorded by the High Court in the impugned judgment are completely contrary to the judgment of a coordinate Bench in Dr. Manu Gupta (supra) that the two services of PCMS and Rural Medical Officers are different as they are governed by two separate set of service rules. The High Court should not have held that the judgment in Dr. Manu Gupta’s case is not relevant as the points that were urged by the State Government to defend the notification were exactly the same which were held in its favour by the High Court earlier. If the High Court was not in agreement with the judgment of the coordinate Bench, the matter should have been referred to a larger Bench. (see: Safia Bee v. Mohd. Vajahath Hussain Alias Fasi (2011) 2 SCC 94 at paragraphs 27-30; G.L. Batra v. State of Haryana and Ors. (2014) 13 SCC 759 at paragraphs 14-16).15. Even assuming that the High Court was right in its conclusion that the impugned notification was vitiated by unreasonable classification, the matter should have been remitted back to the Government for fresh consideration. Instead, the High Court directed the authorities to proceed with the admission process by giving the benefit of incentive to the Rural Medical Officers.16. The first round of counselling for admission to postgraduate courses was completed on 13th, 14th and 15th of April, 2017. Doctors who were selected for admission have paid their fees and joined the courses. We are also informed that certain doctors who secured admission in institutions outside the State have given up their admissions to join the postgraduate course in the State of Punjab. We are not inclined to interfere with the admissions made to postgraduate courses for this year. As we are not interfering with the admissions for this year, we do not deem it necessary to decide the other two points pertaining to the applicability of the incentive to Private Medical Colleges and the validity of the action of the government in prescribing the minimum service in the remote/difficult areas as eligibility criteria.17. While considering the challenge to the validity of Regulation 9 (IV) of the MCI Regulations, this Court considered the objective of Regulation 9 in State of UP v. Dinesh Singh Chauhan, (2016) 9 SCC 749 at paragraph 33 and held as follows:"As aforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post Graduate “Degree” Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post Graduate “Degree” Courses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as this sub-serves larger public interest." | 1[ds]The findings recorded by the High Court in the impugned judgment are completely contrary to the judgment of a coordinate Bench in Dr. Manu Gupta (supra) that the two services of PCMS and Rural Medical Officers are different as they are governed by two separate set of service rules. The High Court should not have held that the judgment in Dr. Manucase is not relevant as the points that were urged by the State Government to defend the notification were exactly the same which were held in its favour by the High Court earlier. If the High Court was not in agreement with the judgment of the coordinate Bench, the matter should have been referred to a larger Bench.Even assuming that the High Court was right in its conclusion that the impugned notification was vitiated by unreasonable classification, the matter should have been remitted back to the Government for fresh consideration. Instead, the High Court directed the authorities to proceed with the admission process by giving the benefit of incentive to the Rural Medical Officers.16. The first round of counselling for admission to postgraduate courses was completed on 13th, 14th and 15th of April, 2017. Doctors who were selected for admission have paid their fees and joined the courses. We are also informed that certain doctors who secured admission in institutions outside the State have given up their admissions to join the postgraduate course in the State of Punjab. We are not inclined to interfere with the admissions made to postgraduate courses for this year. As we are not interfering with the admissions for this year, we do not deem it necessary to decide the other two points pertaining to the applicability of the incentive to Private Medical Colleges and the validity of the action of the government in prescribing the minimum service in the remote/difficult areas as eligibility criteria.17. While considering the challenge to the validity of Regulation 9 (IV) of the MCI Regulations, this Court considered the objective of Regulation 9 in State of UP v. Dinesh Singh Chauhan, (2016) 9 SCC 749 at paragraph 33 and held asaforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post GraduateCourses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post GraduateCourses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as thislarger public interest." | 1 | 2,898 | 524 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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time to time.”12. This Court in the judgment of Dinesh Singh Chauhan held that Regulation 9 is a self contained code for admissions to postgraduate medical courses. There is no doubt that the proviso to Regulation 9 (IV) is an enabling provision. The State Government has the liberty to provide for weightage in the marks to in-service doctors who have served in remote and difficult areas. There is no right which inheres in the government doctors to compel the State Government for providing the incentive. The controversy that arises in this case is whether the government can restrict the benefit of the incentive only to PCMS doctors working in government hospitals and exclude the Rural Medical Officers working in the Zila Parishads.13. As mentioned above, a Division Bench of the High Court in Dr. Manu Gupta v. State of Punjab and Ors. LPA No.1043 of 2013 and connected matters adjudicated the point of Rural Medical Officers satisfying the parameters of in-service doctors. It was held that the two services of PCMS doctors and Rural Medical Officers were different. Their service conditions were not the same and PCMS doctors belong to a State cadre whereas the Rural Medical Officers fall within the District cadre. It was further held that the policy decision taken by the Government not to equate Rural Medical Officers with the PCMS doctors was not arbitrary. The contention of the State was that Rural Medical Officers were working only in subsidiary health centres at the Zila Parishad level where there were no facilities for secondary and tertiary care. The decision of the Government that the funding for postgraduate studies was restricted only to PCMS doctors in view of their posting to District hospitals, sub divisional hospitals and other centres where facilities were available for secondary care. After examining the report submitted by the Chief Secretary, the High Court held that the Rural Medical Officers cannot claim parity with PCMS doctors and seek admission to post graduate courses from the in-service quota.14. The Government made the very same submissions before the High Court in CWP Nos.7026, 7089 and 7418 of 2017 filed by the Rural Medical Officers for extension of benefit of the incentive as per Regulation 9 of the MCI Regulations, 2000. The High Court held that the judgment in Dr. Manu Gupta’s case was not relevant for determination of the questions raised as Regulation 9 was not considered therein. The High Court rejected the submission made by the Government that the two services are different. In the impugned judgment, the High Court held that the health services rendered by Panchayati Raj Institutions complemented the health services provided by the State Government. The High Court observed that the laudable objective with which Regulation 9 was made would be defeated if Rural Medical Officers are not given the benefit of the incentive. The findings recorded by the High Court in the impugned judgment are completely contrary to the judgment of a coordinate Bench in Dr. Manu Gupta (supra) that the two services of PCMS and Rural Medical Officers are different as they are governed by two separate set of service rules. The High Court should not have held that the judgment in Dr. Manu Gupta’s case is not relevant as the points that were urged by the State Government to defend the notification were exactly the same which were held in its favour by the High Court earlier. If the High Court was not in agreement with the judgment of the coordinate Bench, the matter should have been referred to a larger Bench. (see: Safia Bee v. Mohd. Vajahath Hussain Alias Fasi (2011) 2 SCC 94 at paragraphs 27-30; G.L. Batra v. State of Haryana and Ors. (2014) 13 SCC 759 at paragraphs 14-16).15. Even assuming that the High Court was right in its conclusion that the impugned notification was vitiated by unreasonable classification, the matter should have been remitted back to the Government for fresh consideration. Instead, the High Court directed the authorities to proceed with the admission process by giving the benefit of incentive to the Rural Medical Officers.16. The first round of counselling for admission to postgraduate courses was completed on 13th, 14th and 15th of April, 2017. Doctors who were selected for admission have paid their fees and joined the courses. We are also informed that certain doctors who secured admission in institutions outside the State have given up their admissions to join the postgraduate course in the State of Punjab. We are not inclined to interfere with the admissions made to postgraduate courses for this year. As we are not interfering with the admissions for this year, we do not deem it necessary to decide the other two points pertaining to the applicability of the incentive to Private Medical Colleges and the validity of the action of the government in prescribing the minimum service in the remote/difficult areas as eligibility criteria.17. While considering the challenge to the validity of Regulation 9 (IV) of the MCI Regulations, this Court considered the objective of Regulation 9 in State of UP v. Dinesh Singh Chauhan, (2016) 9 SCC 749 at paragraph 33 and held as follows:"As aforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post Graduate “Degree” Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post Graduate “Degree” Courses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as this sub-serves larger public interest."
### Response:
1
### Explanation:
The findings recorded by the High Court in the impugned judgment are completely contrary to the judgment of a coordinate Bench in Dr. Manu Gupta (supra) that the two services of PCMS and Rural Medical Officers are different as they are governed by two separate set of service rules. The High Court should not have held that the judgment in Dr. Manucase is not relevant as the points that were urged by the State Government to defend the notification were exactly the same which were held in its favour by the High Court earlier. If the High Court was not in agreement with the judgment of the coordinate Bench, the matter should have been referred to a larger Bench.Even assuming that the High Court was right in its conclusion that the impugned notification was vitiated by unreasonable classification, the matter should have been remitted back to the Government for fresh consideration. Instead, the High Court directed the authorities to proceed with the admission process by giving the benefit of incentive to the Rural Medical Officers.16. The first round of counselling for admission to postgraduate courses was completed on 13th, 14th and 15th of April, 2017. Doctors who were selected for admission have paid their fees and joined the courses. We are also informed that certain doctors who secured admission in institutions outside the State have given up their admissions to join the postgraduate course in the State of Punjab. We are not inclined to interfere with the admissions made to postgraduate courses for this year. As we are not interfering with the admissions for this year, we do not deem it necessary to decide the other two points pertaining to the applicability of the incentive to Private Medical Colleges and the validity of the action of the government in prescribing the minimum service in the remote/difficult areas as eligibility criteria.17. While considering the challenge to the validity of Regulation 9 (IV) of the MCI Regulations, this Court considered the objective of Regulation 9 in State of UP v. Dinesh Singh Chauhan, (2016) 9 SCC 749 at paragraph 33 and held asaforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post GraduateCourses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post GraduateCourses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as thislarger public interest."
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U.P. State Co-operative Land Development Bank Ltd Vs. Chandra Bhan Dubey | lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares ? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the States power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta and others v. Union of India and others, 1987(1) SCC 395." 23. A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co- operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju, AIR 1990 A.P. 171 was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a `person, or an `authority, within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. 24. In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to bye-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent. | 1[ds]The respondents were apprised of the evidence against each of them and given opportunity of being heard in person and also to produce evidence in defence. Nothing more was required on the part of the Inquiry Officer. Procedure after the receipt of the reports of the Inquiry Officer was followed as prescribed. In our view, the High Court, therefore, fell in error in returning a finding that rules of natural justice or the Regulations and Service Rules which are statutory in nature have not been followed.In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines andlimitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed tothe normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent. | 1 | 7,688 | 779 | ### Instruction:
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lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares ? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the States power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta and others v. Union of India and others, 1987(1) SCC 395." 23. A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co- operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju, AIR 1990 A.P. 171 was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a `person, or an `authority, within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. 24. In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to bye-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.
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1
### Explanation:
The respondents were apprised of the evidence against each of them and given opportunity of being heard in person and also to produce evidence in defence. Nothing more was required on the part of the Inquiry Officer. Procedure after the receipt of the reports of the Inquiry Officer was followed as prescribed. In our view, the High Court, therefore, fell in error in returning a finding that rules of natural justice or the Regulations and Service Rules which are statutory in nature have not been followed.In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines andlimitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed tothe normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop in the exercise of its jurisdiction under Article 226.25. We, therefore, hold that appellant is an authority controlled by the State Government and the service condition of the employee of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.
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Gopi Chand Dhawan and Etc Vs. Deputy Secretary, Punjab and Others | is elsewhere. The allotment is also void because it is contrary to the basic rules that houses could only be allotted to allottees who hold land in that village, and not to outsiders. Many of the allottees have obtained extravagant accommodation. All these illegalities and irregularities have resulted in a great injustice and hardship to the allottees of land of village Abohar. I, therefore, set aside the allotment already made and cancel the permanent rights granted, and direct that the allotment should be made afresh in accordance with Rules 44 and 57 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, after a proper evaluation of the property with the assistance of the Executive Engineer, P. W. D."It does not appear from the order that any specific finding was recorded in respect of the allotments made to the appellants in the two appeals before us. The Chief Settlement Commissioner added :"In making the fresh allotment every possible effort should be made to cause the minimum dislocation and hardship. These allottees who have received proper allotment of houses need not be disturbed. Due regard should also be given to any improvements effected by allottees during the period that the houses have remained in their occupation. Such of the allottees as are in possession of house to which they are not entitled or in excess of the permissible area, may be permitted to purchase them against their claims should they so desire. The principle that should be followed in the new allotment is to cause minimum of dislocation and inconvenience to deserving allottees, ......."The appellants sought to have the order of the Chief Settlement Commissioner revised under Section 33 of the Act. Shri L. J. Johnson, Joint Secretary to the Government of India who dealt with the applications under Section 33, explained and modified the order of the Chief Settlement Commissioner by his own order made on November 21, 1958. The relevant extract from the joint Secretarys order reads :"I, therefore, direct that the sanads granted to genuine allottees of Abohar should not be touched at this stage. If in the course of any enquiry made by the Department it transpires that any allottee of Abohar has obtained an allotment through fraud or misrepresentation, then proceedings to set aside the sanads can be taken after due notice to the allottee concerned in the normal course. It must be remembered that these allottees have been in possession now in some cases since 1951 and have, no. doubt, effected repairs and improvements to houses which were given to them, once sanads were issued in their names, it was only natural for them to treat the houses as permanently transferred and to effect such improvements and repairs. Unless very compelling reasons exist it is quite improper to cancel their sanads merely on the ground that there is general enquiry to be made in regard to allotments in this village. It is apparent from Shri Grewal (Chief Settlement Commissioner. Punjab (s)) order itself that it was not his intention to touch genuine allottees. The general tone of the order, however, and in particular the directive that permanent allotments already made should be set aside raised apprehensions in the minds of the petitioners. It is necessary, therefore, to set these apprehensions at rest. The portion of the order of Shri Grewal relating to genuine allottees of Abohar is set aside."The extract from the Joint Secretarys order shows that the allotments to genuine allottees were not to be treated as cancelled if as a result of the general enquiry those allotments were not found to be vitiated by fraud, misrepresentation or any other serious infirmity which justified cancellation.2. In May 1961 th Deputy Secretary to the Government of Punjab with delegated powers of Chief Settlement Commissioner directed the Managing Officer to make fresh allotment of evacuee houses in village Sukhera Basti, Pursuant to this direction the house allotted to the appellant in C. A. 730 of 1968 was allotted to the third respondent and the house allotted to the appellant in C. A. 997 of 1968 was allotted to respondents 3 to 5 of their respective appeals. The appellants moved the High Court under articles 226 and 227 of the Constitution against the cancellation of their allotments. The learned single Judge who heard these applications dismissed the same and on appeal under Clause 10 of the Letters Patent the Division Bench affirmed the order of dismissal.3. In the course of hearing of the appeals, counsel for the appellants raised a point as to the scope of the proviso to Rule 2 (h) of the Displaced persons (Compensation and Rehabilitation) Rules, 1955. Rule 2 (h) defines urban area. The question suggested itself from the fact that in February, 1961 Sukhera Basti area was included in the Municipal limits of Abohar. Presumably, the point was raised in an attempt to prove that the allotment of the houses to the respondents after that date was invalid. We think that the point, apart from its merits, does not really arise for consideration in these appeals in which the only question is whether the allotments in favour of the appellants were valid. This is a question which can be answered only by testing the allotments in favour of the appellants in the light of the directions given by Shri Grewal and Shri Johnson. If the allotments made in 1951 and sanads granted in 1955 are found to be valid, the inclusion of Sukhera Basti in the municipal limits of Abohar in 1961 would be of no. relevance, and if they are invalid, then this fact is of no. concern of the appellants. It does not appear, however, that before the houses allotted to the appellants were reallotted to the appellants were reallotted to the respondents, the directions contained in the orders made by Shri Grewal and Shri Johnson on 10-5-1958 and 21-11-1958 respectively were carried out. The High Court also does not appear to have been alive to this aspect of the matter. | 1[ds]This is a question which can be answered only by testing the allotments in favour of the appellants in the light of the directions given by Shri Grewal and Shri Johnson. If the allotments made in 1951 and sanads granted in 1955 are found to be valid, the inclusion of Sukhera Basti in the municipal limits of Abohar in 1961 would be of no. relevance, and if they are invalid, then this fact is of no. concern of the appellants. It does not appear, however, that before the houses allotted to the appellants were reallotted to the appellants were reallotted to the respondents, the directions contained in the orders made by Shri Grewal and Shri Johnson on58 respectively were carried out. The High Court also does not appear to have been alive to this aspect of the matter. | 1 | 1,270 | 154 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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is elsewhere. The allotment is also void because it is contrary to the basic rules that houses could only be allotted to allottees who hold land in that village, and not to outsiders. Many of the allottees have obtained extravagant accommodation. All these illegalities and irregularities have resulted in a great injustice and hardship to the allottees of land of village Abohar. I, therefore, set aside the allotment already made and cancel the permanent rights granted, and direct that the allotment should be made afresh in accordance with Rules 44 and 57 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, after a proper evaluation of the property with the assistance of the Executive Engineer, P. W. D."It does not appear from the order that any specific finding was recorded in respect of the allotments made to the appellants in the two appeals before us. The Chief Settlement Commissioner added :"In making the fresh allotment every possible effort should be made to cause the minimum dislocation and hardship. These allottees who have received proper allotment of houses need not be disturbed. Due regard should also be given to any improvements effected by allottees during the period that the houses have remained in their occupation. Such of the allottees as are in possession of house to which they are not entitled or in excess of the permissible area, may be permitted to purchase them against their claims should they so desire. The principle that should be followed in the new allotment is to cause minimum of dislocation and inconvenience to deserving allottees, ......."The appellants sought to have the order of the Chief Settlement Commissioner revised under Section 33 of the Act. Shri L. J. Johnson, Joint Secretary to the Government of India who dealt with the applications under Section 33, explained and modified the order of the Chief Settlement Commissioner by his own order made on November 21, 1958. The relevant extract from the joint Secretarys order reads :"I, therefore, direct that the sanads granted to genuine allottees of Abohar should not be touched at this stage. If in the course of any enquiry made by the Department it transpires that any allottee of Abohar has obtained an allotment through fraud or misrepresentation, then proceedings to set aside the sanads can be taken after due notice to the allottee concerned in the normal course. It must be remembered that these allottees have been in possession now in some cases since 1951 and have, no. doubt, effected repairs and improvements to houses which were given to them, once sanads were issued in their names, it was only natural for them to treat the houses as permanently transferred and to effect such improvements and repairs. Unless very compelling reasons exist it is quite improper to cancel their sanads merely on the ground that there is general enquiry to be made in regard to allotments in this village. It is apparent from Shri Grewal (Chief Settlement Commissioner. Punjab (s)) order itself that it was not his intention to touch genuine allottees. The general tone of the order, however, and in particular the directive that permanent allotments already made should be set aside raised apprehensions in the minds of the petitioners. It is necessary, therefore, to set these apprehensions at rest. The portion of the order of Shri Grewal relating to genuine allottees of Abohar is set aside."The extract from the Joint Secretarys order shows that the allotments to genuine allottees were not to be treated as cancelled if as a result of the general enquiry those allotments were not found to be vitiated by fraud, misrepresentation or any other serious infirmity which justified cancellation.2. In May 1961 th Deputy Secretary to the Government of Punjab with delegated powers of Chief Settlement Commissioner directed the Managing Officer to make fresh allotment of evacuee houses in village Sukhera Basti, Pursuant to this direction the house allotted to the appellant in C. A. 730 of 1968 was allotted to the third respondent and the house allotted to the appellant in C. A. 997 of 1968 was allotted to respondents 3 to 5 of their respective appeals. The appellants moved the High Court under articles 226 and 227 of the Constitution against the cancellation of their allotments. The learned single Judge who heard these applications dismissed the same and on appeal under Clause 10 of the Letters Patent the Division Bench affirmed the order of dismissal.3. In the course of hearing of the appeals, counsel for the appellants raised a point as to the scope of the proviso to Rule 2 (h) of the Displaced persons (Compensation and Rehabilitation) Rules, 1955. Rule 2 (h) defines urban area. The question suggested itself from the fact that in February, 1961 Sukhera Basti area was included in the Municipal limits of Abohar. Presumably, the point was raised in an attempt to prove that the allotment of the houses to the respondents after that date was invalid. We think that the point, apart from its merits, does not really arise for consideration in these appeals in which the only question is whether the allotments in favour of the appellants were valid. This is a question which can be answered only by testing the allotments in favour of the appellants in the light of the directions given by Shri Grewal and Shri Johnson. If the allotments made in 1951 and sanads granted in 1955 are found to be valid, the inclusion of Sukhera Basti in the municipal limits of Abohar in 1961 would be of no. relevance, and if they are invalid, then this fact is of no. concern of the appellants. It does not appear, however, that before the houses allotted to the appellants were reallotted to the appellants were reallotted to the respondents, the directions contained in the orders made by Shri Grewal and Shri Johnson on 10-5-1958 and 21-11-1958 respectively were carried out. The High Court also does not appear to have been alive to this aspect of the matter.
### Response:
1
### Explanation:
This is a question which can be answered only by testing the allotments in favour of the appellants in the light of the directions given by Shri Grewal and Shri Johnson. If the allotments made in 1951 and sanads granted in 1955 are found to be valid, the inclusion of Sukhera Basti in the municipal limits of Abohar in 1961 would be of no. relevance, and if they are invalid, then this fact is of no. concern of the appellants. It does not appear, however, that before the houses allotted to the appellants were reallotted to the appellants were reallotted to the respondents, the directions contained in the orders made by Shri Grewal and Shri Johnson on58 respectively were carried out. The High Court also does not appear to have been alive to this aspect of the matter.
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Sebi Vs. Akshya Infrastructure Pvt.Ltd | now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. (supra). We reiterate our opinion in Nirma Industries Ltd. (supra) that under Clause 27(1)(b)(c) and (d), a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.32. We also do not find any merit in the submission of Mr. Nariman that the delay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27(1)(b). The consideration by SEBI is as to whether a Public Offer is in conformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can not be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its comments on the letter of offer would not fall under Regulation 27(1)(b).33. This now brings us to the submission of Mr. Nariman that there was a breach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to place on the record either before SAT or before this Court the prejudice that has been caused by not observing Rules of Natural Justice. It is by now settled proposition of law that mere breach of Rules of Natural Justice is not sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement & Anr., [(2010) 13 SCC 255] wherein it was held that “there must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice.” 34. All the information sought by SEBI related to the three earlier acquisitions when the creeping limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent.35. Finally, we are unable to accept the submission of Mr. Nariman that the ratio of law as declared in Nirma Industries Ltd. (supra) would not be applicable to the facts and circumstances of this case. As pointed out earlier, we do not accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The consequences of both kinds of offers to acquire shares in the Target Company, at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be considered by the Board in terms of Regulation 27(1)(b)(c) and (d). Further, the deletion of Regulation 27(1)(a) does not, in any manner, advance the case of the respondent. It rather reinforces the conclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27(1)(b)(c) and (d). We also do not agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27(1)(b) for the reasons already stated. We have already come to the conclusion that the delay in offering comments by the Board on the letter containing voluntary open offer, though undesirable, is not fatal to the decision ultimately taken by the Board. We, therefore, reiterate our conclusion in Nirma Industries (supra).36. We also do not find substance in the submission of Mr. Nariman that the judgment in Nirma Industries (supra) needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27(1)(b)(c) and (d) as there is a common genus of impossibility. This impossibility envisioned under the aforesaid regulation would not include a contingency where voluntary open offer once made can be permitted to be withdrawn on the ground that it has now become economically unviable. Accepting such a submission, would give a field day to unscrupulous elements in the securities market to make Public Announcement for acquiring shares in the Target Company, knowing perfectly well that they can pull out when the prices of the shares have been inflated, due to the public offer. Such speculative practices are sought to be prevented by Regulation 27(1)(b)(c) and (d), that is precisely the reason why Regulation 27(1)(a) was deleted. Merely because there has not been any substantial change in the price of shares in this particular case, would not, in any manner, invalidate the conclusion reached in Nirma Industries (supra).37. Last but not least, we are not able to approve the approach adopted by SAT in adopting the Issue of Capital and Disclosure Requirements Regulations, 2009 (ICDR) Regulation for interpreting the provisions contained in Regulation 27 of the Takeover Regulations. The regulations in Takeover Code have to be interpreted by correlating these regulations to the provisions of the SEBI Act. | 1[ds]25. Factually, it cannot be denied that in the years 2006-07, 2007- 08 and 2010-11, the respondent had acquired shares in excess of 5% which breached the 5% creeping acquisition limit. In our opinion, the respondent was required to comply with Regulation 11 and make a Public Announcement to acquire shares in accordance with law. The respondent admittedly not having complied with Regulation 11, in our opinion, the appellant was perfectly justified in taking the non-compliance into consideration whilst considering the feasibility of the public offer made on 20th October, 2011.26. With regard to delay, we do not find much substance in the submission of Mr. C.U. Singh. Mr. Singh has sought to explain the delay on the ground that information sought by the appellant was not given by the respondent. In our opinion, this was no ground for the appellant to delay the issuance of comments on the letter of offer, especially not for a period of 13 months. In the event the information was not forthcoming, the appellant had the power to refuse the approval of the public offer. It is true that under Regulation 18(2), SEBI was required to dispatch the necessary letters to the shareholders within a reasonable period. It is a matter of record that the comments were not offered for 13 months. Such kind of delay is wholly inexcusable and needs to be avoided. It can lead to avoidable controversy with regard to whether such belated action is bona fide exercise of statutory power by SEBI. By adopting such a lackadaisical, if not callous attitude, the very object for which the regulations have been framed is diluted, if not frustrated. It must be remembered that SEBI is the watchdog of the Securities Market. It is the guardian of the interest of the shareholders. It is the protective shield against unscrupulous practices in the Securities Market. Therefore, SEBI like any other body, which is established as a watchdog, ought not to act in a lackadaisical manner in the performance of its duties. The time frame stipulated by the Act and the Takeover Regulations for performing certain functions is required to be maintained to establish the transparency in the functioning of SEBI.27. Having said this, we are afraid such delay is of no assistance to the respondent. It will not result in nullifying the action taken by SEBI, even though belated. Ultimately, SEBI is charged with the duty of ensuring that every public offer made is bona fide for the benefit of the shareholders as well as acquirers. In the present case, SEBI has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr. Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the table, we find substance in the submission of Mr. Nariman that there is hardly any variation in the shares of the Target Company from 20th October, 2011 till 30th November, 2011. The variation seems to have been between Rs. 78.10 (on 24.11.2011) and Rs. 87.60 (on 20.10.2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well known phenomena that Public Announcement of the public offering affects the securities market and the shares of the Target Company. The impact is immediate.28. We are unable to agree with the submission of Mr. Nariman that Regulation 27 would not be applicable to a voluntary public offer. A perusal of Regulation 27(1) makes it patently clear that Regulation 27(1) readspublic offer, once made, shall not be withdrawn except under the followingsubmission would be to reconstruct the aforesaid provision. This Court, or any other court, whilst construing the statutory provision cannot reconstruct the same. The plain reading of the aforesaid regulation makes it clear that no public offer whether it is voluntary or triggered by Regulation 11 can be withdrawn, unless it satisfies the circumstances set out in Regulation 27(1)(b), (c) and (d). There can be no distinction between a triggered public offer and a voluntary public offer. Both have to be considered on an equal footing. We find substance in the submission made by Mr. C.U. Singh that Regulation 18(2) has no relevance to the case projected by the respondents having singularly failed to give the necessary information to SEBI with regard to the earlier three acquisitions.29. We also do not agree with Mr. Nariman that Regulation 27 has to be read in the context of the Regulation as it existed when it was first enacted. As noticed earlier, Regulation 27(1)(a) before its deletion on September 9, 2002 permitted the public offer to be withdrawn, consequent upon any competitive bid. We see no reason to differ from the view taken in Nirma Industries Ltd. (supra) wherein we have observed asA bare perusal of the aforesaid Regulations shows that Regulation 27(1) states the general rule in negative terms. It provides that no public offer, once made, shall be withdrawn. Since clause (a) has been omitted, we are required to interpret only the scope and ambit of clauses (b), (c) and (d). The three sub-clauses are exceptions to the general rule and, therefore, have to be construed very strictly. The exceptions cannot be construed in such a manner that would destroy the general rule that no public offer shall be permitted to be withdrawn after the public announcement has been made. Clause (b) would permit a public offer to be withdrawn in case of legal impossibility when the statutory approval required has been refused. Clause (c) again provides for impossibility when the sole acquirer, being a natural person, has died. Clause (b) deals with a legal impossibility whereas clause (c) deals with a natural disaster. Clearly clauses (b) and (c) are within the same genus of impossibility. Clause (d) also being an exception to the general rule would have to be naturally construed in terms of clauses (b) and (c). Mr Divan has placed a great deal of emphasis on the expressionn theto indicate that the Board would have a wide discretion to permit withdrawal of an offer even though it is not impossible to perform. We are unable to accept such an interpretation.The submission with regard to the non-applicability of ejusdem generis for interpretation of the Takeover Regulations has been considered and rejected in Nirma Industries Ltd. (supra) (Paragraphs 63 to 71).31. We are also not impressed by the submission of Mr. Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. (supra). We reiterate our opinion in Nirma Industries Ltd. (supra) that under Clause 27(1)(b)(c) and (d), a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.32. We also do not find any meritthe submission of Mr. Nariman that thedelay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27(1)(b). The consideration by SEBI is as to whether a Public Offer is in conformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can not be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its commentsthe letter of offerwould not fall under Regulation 27(1)(b).33. This now brings us tothe submission of Mr. Nariman thatthere was abreach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to placerd either before SAT or before this Court the prejudice that has been caused by not observing Rules of Natural Justice. It is by now settled proposition of law that mere breach of Rules of Natural Justice is not sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement & Anr., [(2010) 13 SCC 255] wherein it was held thatmust also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice.All the information sought by SEBI related to the three earlier acquisitionsng limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent.35. Finally, we are unable to acceptthe submission of Mr. Nariman thatratio of law as declared in Nirma Industries Ltd. (supra) would not be applicable to the facts and circumstances of this case. As pointed out earlier, we do not accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The consequences of both kinds of offers to acquire sharesthe Target Company,at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be considered by the Board in terms of Regulation 27(1)(b)(c) and (d). Further, the deletion of Regulation 27(1)(a) does not, in any manner, advance the case of the respondent. It rather reinforces the conclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27(1)(b)(c) and (d). We also do not agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27(1)(b) for the reasons already stated. We have already come to the conclusion that the delay in offering comments by the Boardletter containing voluntary open offer, though undesirable, is not fatal to the decision ultimately taken by the Board. We, therefore, reiterate our conclusion in Nirma Industries (supra).36. We also do not find substancethe submission of Mr. Nariman thatthe judgment in Nirma Industries (supra) needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27(1)(b)(c) and (d) as there is a common genus of impossibility. This impossibility envisioned under the aforesaid regulation would not include a contingency where voluntary open offer once made can be permitted to be withdrawnnd that it has now become economically unviable. Accepting such a submission, would give a field day to unscrupulous elementsthe securities marketto make Public Announcement for acquiring sharesthe Target Company,knowing perfectly well that they can pull outprices of the shares have been inflated, due to the public offer. Such speculative practices are sought to be prevented by Regulation 27(1)(b)(c) and (d), that is precisely the reason why Regulation 27(1)(a) was deleted. Merely because there has not been any substantial changece of shares in this particular case, would not, in any manner, invalidate the conclusion reached in Nirma Industries (supra).37. Last but not least, we are not able to approve the approach adopted by SAT in adopting the Issue of Capital and Disclosure Requirements Regulations, 2009 (ICDR) Regulation for interpreting the provisions contained in Regulation 27 of the Takeover Regulations. The regulations in Takeover Code have to be interpreted by correlating these regulations to the provisions of the SEBI Act. | 1 | 7,268 | 2,436 | ### Instruction:
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now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. (supra). We reiterate our opinion in Nirma Industries Ltd. (supra) that under Clause 27(1)(b)(c) and (d), a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.32. We also do not find any merit in the submission of Mr. Nariman that the delay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27(1)(b). The consideration by SEBI is as to whether a Public Offer is in conformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can not be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its comments on the letter of offer would not fall under Regulation 27(1)(b).33. This now brings us to the submission of Mr. Nariman that there was a breach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to place on the record either before SAT or before this Court the prejudice that has been caused by not observing Rules of Natural Justice. It is by now settled proposition of law that mere breach of Rules of Natural Justice is not sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement & Anr., [(2010) 13 SCC 255] wherein it was held that “there must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice.” 34. All the information sought by SEBI related to the three earlier acquisitions when the creeping limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent.35. Finally, we are unable to accept the submission of Mr. Nariman that the ratio of law as declared in Nirma Industries Ltd. (supra) would not be applicable to the facts and circumstances of this case. As pointed out earlier, we do not accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The consequences of both kinds of offers to acquire shares in the Target Company, at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be considered by the Board in terms of Regulation 27(1)(b)(c) and (d). Further, the deletion of Regulation 27(1)(a) does not, in any manner, advance the case of the respondent. It rather reinforces the conclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27(1)(b)(c) and (d). We also do not agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27(1)(b) for the reasons already stated. We have already come to the conclusion that the delay in offering comments by the Board on the letter containing voluntary open offer, though undesirable, is not fatal to the decision ultimately taken by the Board. We, therefore, reiterate our conclusion in Nirma Industries (supra).36. We also do not find substance in the submission of Mr. Nariman that the judgment in Nirma Industries (supra) needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27(1)(b)(c) and (d) as there is a common genus of impossibility. This impossibility envisioned under the aforesaid regulation would not include a contingency where voluntary open offer once made can be permitted to be withdrawn on the ground that it has now become economically unviable. Accepting such a submission, would give a field day to unscrupulous elements in the securities market to make Public Announcement for acquiring shares in the Target Company, knowing perfectly well that they can pull out when the prices of the shares have been inflated, due to the public offer. Such speculative practices are sought to be prevented by Regulation 27(1)(b)(c) and (d), that is precisely the reason why Regulation 27(1)(a) was deleted. Merely because there has not been any substantial change in the price of shares in this particular case, would not, in any manner, invalidate the conclusion reached in Nirma Industries (supra).37. Last but not least, we are not able to approve the approach adopted by SAT in adopting the Issue of Capital and Disclosure Requirements Regulations, 2009 (ICDR) Regulation for interpreting the provisions contained in Regulation 27 of the Takeover Regulations. The regulations in Takeover Code have to be interpreted by correlating these regulations to the provisions of the SEBI Act.
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such an interpretation.The submission with regard to the non-applicability of ejusdem generis for interpretation of the Takeover Regulations has been considered and rejected in Nirma Industries Ltd. (supra) (Paragraphs 63 to 71).31. We are also not impressed by the submission of Mr. Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. (supra). We reiterate our opinion in Nirma Industries Ltd. (supra) that under Clause 27(1)(b)(c) and (d), a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.32. We also do not find any meritthe submission of Mr. Nariman that thedelay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27(1)(b). The consideration by SEBI is as to whether a Public Offer is in conformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can not be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its commentsthe letter of offerwould not fall under Regulation 27(1)(b).33. This now brings us tothe submission of Mr. Nariman thatthere was abreach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to placerd either before SAT or before this Court the prejudice that has been caused by not observing Rules of Natural Justice. It is by now settled proposition of law that mere breach of Rules of Natural Justice is not sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement & Anr., [(2010) 13 SCC 255] wherein it was held thatmust also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice.All the information sought by SEBI related to the three earlier acquisitionsng limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent.35. Finally, we are unable to acceptthe submission of Mr. Nariman thatratio of law as declared in Nirma Industries Ltd. (supra) would not be applicable to the facts and circumstances of this case. As pointed out earlier, we do not accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The consequences of both kinds of offers to acquire sharesthe Target Company,at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be considered by the Board in terms of Regulation 27(1)(b)(c) and (d). Further, the deletion of Regulation 27(1)(a) does not, in any manner, advance the case of the respondent. It rather reinforces the conclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27(1)(b)(c) and (d). We also do not agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27(1)(b) for the reasons already stated. We have already come to the conclusion that the delay in offering comments by the Boardletter containing voluntary open offer, though undesirable, is not fatal to the decision ultimately taken by the Board. We, therefore, reiterate our conclusion in Nirma Industries (supra).36. We also do not find substancethe submission of Mr. Nariman thatthe judgment in Nirma Industries (supra) needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27(1)(b)(c) and (d) as there is a common genus of impossibility. This impossibility envisioned under the aforesaid regulation would not include a contingency where voluntary open offer once made can be permitted to be withdrawnnd that it has now become economically unviable. Accepting such a submission, would give a field day to unscrupulous elementsthe securities marketto make Public Announcement for acquiring sharesthe Target Company,knowing perfectly well that they can pull outprices of the shares have been inflated, due to the public offer. Such speculative practices are sought to be prevented by Regulation 27(1)(b)(c) and (d), that is precisely the reason why Regulation 27(1)(a) was deleted. Merely because there has not been any substantial changece of shares in this particular case, would not, in any manner, invalidate the conclusion reached in Nirma Industries (supra).37. Last but not least, we are not able to approve the approach adopted by SAT in adopting the Issue of Capital and Disclosure Requirements Regulations, 2009 (ICDR) Regulation for interpreting the provisions contained in Regulation 27 of the Takeover Regulations. The regulations in Takeover Code have to be interpreted by correlating these regulations to the provisions of the SEBI Act.
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MATA RAM Vs. NATIONAL INSURANCE COMPANY LTD | 1. Leave granted. 2. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court Himachal Pradesh at Shimla whereby the High Court disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. 3. The facts, in brief, are as follows :- i) The appellant herein got his Tractor and Trolley insured with the National Insurance Company Limited, Respondent No.1 herein and that extra premium was also paid for the insurance of the driver of the vehicle and three employees. ii) The vehicle met with an accident. The Claimants/proforma respondents filed claim petition in lieu of death of one Mohammad Khatrudin alias Khabu before the Motor Accidents Claim Tribunal (in short the Tribunal). iii) The Tribunal decided the claim petition on its merits in favour of the claimants and fastened the liability on the Respondent No.1-Insurance Company with a direction to the Insurance Company to indemnify the insured as Insurance Company has charged the premium for three persons excluding the driver of the tractor from the owner of the tractor at the time of issuance of the insurance policy. iv) The Insurance Company, being aggrieved by the order of the Tribunal saddling it with the liability, filed FAO No. 106/2009 before the High Court of Himachal Pradesh. v) The High Court, by impugned judgment, disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. vi) Being aggrieved, the appellant preferred this appeal, by way of special leave. 4. Heard the learned counsel appearing for the parties. 5. The only question which arises for our consideration is whether the Insurance Company can be absolved from its liability on the death of a person from indemnifying the insured when the Insurance Company has specifically charged a premium from the insured for carrying three persons excluding the driver. 6. Learned counsel appearing for the appellant contended that the High Court has committed grave error by reversing the well-reasoned award of the Tribunal merely on the basis of finding on presumption in contrary to the evidence available on record and taken us through the evidence on record including the insurance policy. 7. Learned counsel for the appellant, in support of his case, drew our attention to a judgment passed by this Court in B.V. Nagaraju v. M/s Oriental Insurance Co. Ltd., AIR 1996 SC 2054 wherein this Court held that the terms of the policy of insurance are not to be construed so strictly and are to be read down to advance the main purpose of the contract and that the exclusion clause of the insurance policy must be read down so as to serve the main purpose of the policy. 8. We have gone through the material available on record including the terms and conditions mentioned in the Insurance Policy and the judgment of this Court cited before us. 9. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the Insurance Company has charged a premium from the insured for three persons excluding the driver, we are of the opinion that the Insurance Company cannot be absolved from its liability on the death of a person. 10. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question. | 1[ds]8. We have gone through the material available on record including the terms and conditions mentioned in the Insurance Policy and the judgment of this Court cited before us.9. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the Insurance Company has charged a premium from the insured for three persons excluding the driver, we are of the opinion that the Insurance Company cannot be absolved from its liability on the death of a person.10. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question. | 1 | 666 | 146 | ### Instruction:
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1. Leave granted. 2. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court Himachal Pradesh at Shimla whereby the High Court disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. 3. The facts, in brief, are as follows :- i) The appellant herein got his Tractor and Trolley insured with the National Insurance Company Limited, Respondent No.1 herein and that extra premium was also paid for the insurance of the driver of the vehicle and three employees. ii) The vehicle met with an accident. The Claimants/proforma respondents filed claim petition in lieu of death of one Mohammad Khatrudin alias Khabu before the Motor Accidents Claim Tribunal (in short the Tribunal). iii) The Tribunal decided the claim petition on its merits in favour of the claimants and fastened the liability on the Respondent No.1-Insurance Company with a direction to the Insurance Company to indemnify the insured as Insurance Company has charged the premium for three persons excluding the driver of the tractor from the owner of the tractor at the time of issuance of the insurance policy. iv) The Insurance Company, being aggrieved by the order of the Tribunal saddling it with the liability, filed FAO No. 106/2009 before the High Court of Himachal Pradesh. v) The High Court, by impugned judgment, disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. vi) Being aggrieved, the appellant preferred this appeal, by way of special leave. 4. Heard the learned counsel appearing for the parties. 5. The only question which arises for our consideration is whether the Insurance Company can be absolved from its liability on the death of a person from indemnifying the insured when the Insurance Company has specifically charged a premium from the insured for carrying three persons excluding the driver. 6. Learned counsel appearing for the appellant contended that the High Court has committed grave error by reversing the well-reasoned award of the Tribunal merely on the basis of finding on presumption in contrary to the evidence available on record and taken us through the evidence on record including the insurance policy. 7. Learned counsel for the appellant, in support of his case, drew our attention to a judgment passed by this Court in B.V. Nagaraju v. M/s Oriental Insurance Co. Ltd., AIR 1996 SC 2054 wherein this Court held that the terms of the policy of insurance are not to be construed so strictly and are to be read down to advance the main purpose of the contract and that the exclusion clause of the insurance policy must be read down so as to serve the main purpose of the policy. 8. We have gone through the material available on record including the terms and conditions mentioned in the Insurance Policy and the judgment of this Court cited before us. 9. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the Insurance Company has charged a premium from the insured for three persons excluding the driver, we are of the opinion that the Insurance Company cannot be absolved from its liability on the death of a person. 10. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question.
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8. We have gone through the material available on record including the terms and conditions mentioned in the Insurance Policy and the judgment of this Court cited before us.9. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the Insurance Company has charged a premium from the insured for three persons excluding the driver, we are of the opinion that the Insurance Company cannot be absolved from its liability on the death of a person.10. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question.
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Maharashtra Vegetable Products Private Limited Vs. Union of India | out, the matter with regard to the nature of the Excise Duty and the components which have to be included in the price chargeable to Excise Duty had been decided by the Supreme Court and it was merely an application of that law which was called for in the writ petitions in question. An additional circumstance which appears on the facts of the present case is that the goods in question were sold at a controlled price the components of which are unknown. It is not therefore possible to say how much of the Excise Duty formed a part of the controlled price at which the goods were sold to the consumer. Even otherwise, it could therefore not be said that it is fully established that the petitioners have reimbursed themselves to the extent of the amount which they are now seeking to recover. We may make it clear that this is only on additional ground on which we are not inclined to accept the argument that the claim of the petitioners should not be granted.(16) IT was then sought to be contended by Mr. Lokur that a question as to whether the writ petitions had been diligently filed would involve a question of fact and that the diligence of the petitioners could be enquired into only if they come by way of a suit. Cawasjis case makes it clear that for filing the writ petition to recover money paid under mistake of law, the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered as that would normally be the date on which the mistake becomes known to the party. The question with regard to the exclusion of post-manufacturing expenses as part of the price was decided by the Supreme Court by their decision dated 1-12-1972 in A. K. Roy and another v. Voltas Ltd.- 1977 ELT (J 77) = AIR 1973 sc 225 . The argument that was advanced before us was that the limitation should really commence from the decision of the Bombay High Court which was taken in appeal to the Supreme Court in the Voltas case. The decision of the High Court was given in August 1970. There are two reasons on which we should reject this contention. Firstly, it is unfortunate that even through the amount, refund of which is claimed by the petitioner, has now been held to have been recovered without authority of law, such an argument was advanced before us in spite of the clear dictum of the Supreme Court that the government should normally not raise a plea of bar of limitation. We may point out that in a recent decision of the Supreme Court in Madras port Trust v. Hymanshu International, 1979 Excise Law Times (J306), the inadvisability of government relying on technical pleas has been clearly pointed out in the following observations made by Bhagwati, J.:"it is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become available. "(17) THE second ground is that the law relating to the exclusion of the value of containers particularly came to be settled by the decision of this Court in Mansingkas case which came in September 1974 and the law relating to marketing charges came to be settled in Indian Tobacco companys case which came in December 1975. The ratio of these two decisions is now sought to be invoked by the petitioners. These were the decisions material for deciding whether the petition has been filed within three years from the time when the mistake of law became known. There is no doubt that the petition is filed within three years from the time when the decision in Mansingkas case was reported. Apart from this, it is difficult to entertain such a submission from the department which, with open eyes, wants to ignore the decision of this Court and of the supreme Court and is still persisting in the argument that Excise Duty has been properly recovered even though the three disputed components were taken into account for determining the price chargeable to Excise Duty. We are not, therefore, able to see any circumstance which would dissuade us from exercising our jurisdiction in favour of the petitioners especially when under the Constitution, recovery of every single rupee must be an authorised recovery. Any recovery which is unauthorised would be recovery without authority of law and therefore pleas raised on behalf of the authorities intended to justify their actions which are in gross violation of the law laid down by the Supreme Court and this High Court must be rejected. We must therefore hold that the petitioners will be entitled to a mandamus directing the authorities and the union of India to refund the excess amounts recovered by them on account of inclusion of packing cost, freight and marketing and distribution expenses during the period from 15-4-1970 to 30-11-1974 and amounts recovered in excess during the period 11-12-1974 to 4-1-1975 by including marketing and distribution expenses as a part of the price chargeable to Excise Duty. The petitioners have no doubt made a claim for a total amount of Rs. 8, 90,320. 31. It will however be for them to satisfy the appropriate authorities about the exact quantum of the amount under the heads referred to above. | 1[ds](6) WE do not think it necessary to deal at any length with the first two contentions. Having regard to decide in Mansingkas case, Indian Tobaccos case and a large number of like decisions following these two cases, it is now too late to contend that the cost of containers, freight and marketing charges are notexpenses. Having regard to the long line of decisions, we must hold that the charges under these three heads could not have been taken into account for determining the chargeability to ExciseSO far as the contention that the claim for refund is barred by Rule 11 of the Excise Rules, we may refer to a very recent decision of this Court in Associated Bearing Company Limited and another vs. Union of India, Special Civil Application No. 2118 of 1976 decided on 5th March 19801980 ELT 415, to which one of us was a party. The contention whether a claim for refund on the ground that certain items which were in the nature ofexpenses were taken into account for the purposes of chargeability to Excise Duty falls within Rule 11 of the excise Rules has been considered at length in that decision. And it has been held that levy in such a case being wholly without jurisdiction and outside the provisions of section 3 of the Act would not attract the bar of limitation prescribed by Rule 11. The contention that the claim for refund must be negatived in respect of a period in excess of one year must also standIT is difficult for us to appreciate how the fact that suit for refund could have been filed by the petitioners can come in the way of the petitioners if they are otherwise entitled to the refund of the amount claimed by them. It is now well established that the existance of an alternative remedy is not an absolute bar to entertaining a petition under Article 226. It is difficult to hold that in a case where the constitutional validity of a levy like excise duty is in question and an action of Union of India almost amounts to recovery of a tax without authority of law, a suit can be said to be a remedy which is equally expeditious, efficacious and adequate as proceedings under Article 226. We must bear in mind that in this case the claim is based on the constitutional invalidity of a part of the levy as determined by the Supreme Court and this Court in respect ofexpenses. Facts in the present case are not in dispute. The basis of the claim of the petitioners was the declaration of the law made by Supreme Court from time to time as well as by this Court in similar claims for refund of Excise Duty said to have been wrongly recovered. Indeed on the authorities and the law which seem to be now well settled, the Excise authorities have no jurisdiction to take into account anything in the nature ofexpenses for the purpose of chargeability to Excise Duty. If this constitutional position is now well established, it is difficult to entertain the argument advanced on behalf of Union of India that a manufacturer of a citizen should be forced to take recourse to a long drawn out trial in the trial Court with the possibility of the decision of the trial Court being challenged in appeals when it isthat the proceedings commencing with the suit and the appeals in higher Court taken together take nothing less than ten or twelveTHE argument on behalf of the Union of India almost comes to this that even though the constitutional position is well established the petitioners should have really gone to a Civil Court where, as it now transpires, when no substantial defence is available to the Union against the claim for refund, a decree would necessarily follow. What difference it makes to the Union of india as to whether a decree is made in a Civil Court or a direction is given by the High Court, if a direction for refund has necessarily to follow by giving effect to the earlier decision of this court, it is difficult for us to comprehend. We must therefore reject the contention that the petitioners should have taken recourse to the ordinary procedure of filing a civilTHE contention that a direction issued by this Court under article 226 is likely to result in unjust enrichment of the petitioners, in our view, is required to be considered in two aspects. Firstly, a defence of unjust enrichment would not have been available to the Union in a civil suit. If the petitioners had filed a civil suit and if they establish that Excise Duty outside the Act has been recovered, the question as to whether they had passed on the burden to the consumers or not would not have been relevant at all for deciding the liability of the Union of India to refund the excess amountobservations clearly highlight the fact that the State is under an obligation to refund monies which have been recovered without authority ofA careful study of Cawasji case will also show that the relief to the petitioners in that case was declined not on the ground that it would result in unjust enrichment of the company. The claim in the writ petitions was for refund of educational cess for the periodse observations will make it clear that the ground on which the Supreme Court was not inclined to interfere with the order of the High Court was that it was not proper to promote multiplicity of unnecessary legal proceedings. Cawasjis case is, therefore, not an authority for the proposition that the claim for refund must necessarily be rejected on the ground that an order for refund is likely to result in unjust enrichment. It appears from the judgment of the Supreme Court that the fact that the appellants had not given any reasons as to why that claim was not made in the earlier writ petitions heavily weighed with the Supreme Court when they declined to interfere with the decision of the High Court. We are therefore unable to accept the contention advanced on behalf of the Union of India that the petitioners are not entitled to any refund as the levy has already been passed on to theAS already pointed out, the matter with regard to the nature of the Excise Duty and the components which have to be included in the price chargeable to Excise Duty had been decided by the Supreme Court and it was merely an application of that law which was called for in the writ petitions in question. An additional circumstance which appears on the facts of the present case is that the goods in question were sold at a controlled price the components of which are unknown. It is not therefore possible to say how much of the Excise Duty formed a part of the controlled price at which the goods were sold to the consumer. Even otherwise, it could therefore not be said that it is fully established that the petitioners have reimbursed themselves to the extent of the amount which they are now seeking to recover. We may make it clear that this is only on additional ground on which we are not inclined to accept the argument that the claim of the petitioners should not becase makes it clear that for filing the writ petition to recover money paid under mistake of law, the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered as that would normally be the date on which the mistake becomes known to the party. The question with regard to the exclusion ofexpenses as part of the price was decided by the Supreme Court by their decision datedin A. K. Roy and another v. Voltas Ltd.1977 ELT (J 77) = AIR 1973 sc 225 . The argument that was advanced before us was that the limitation should really commence from the decision of the Bombay High Court which was taken in appeal to the Supreme Court in the Voltas case. The decision of the High Court was given in August 1970. There are two reasons on which we should reject this contention. Firstly, it is unfortunate that even through the amount, refund of which is claimed by the petitioner, has now been held to have been recovered without authority of law, such an argument was advanced before us in spite of the clear dictum of the Supreme Court that the government should normally not raise a plea of bar ofTHE second ground is that the law relating to the exclusion of the value of containers particularly came to be settled by the decision of this Court in Mansingkas case which came in September 1974 and the law relating to marketing charges came to be settled in Indian Tobacco companys case which came in December 1975. The ratio of these two decisions is now sought to be invoked by the petitioners. These were the decisions material for deciding whether the petition has been filed within three years from the time when the mistake of law became known. There is no doubt that the petition is filed within three years from the time when the decision in Mansingkas case was reported. Apart from this, it is difficult to entertain such a submission from the department which, with open eyes, wants to ignore the decision of this Court and of the supreme Court and is still persisting in the argument that Excise Duty has been properly recovered even though the three disputed components were taken into account for determining the price chargeable to Excise Duty. We are not, therefore, able to see any circumstance which would dissuade us from exercising our jurisdiction in favour of the petitioners especially when under the Constitution, recovery of every single rupee must be an authorised recovery. Any recovery which is unauthorised would be recovery without authority of law and therefore pleas raised on behalf of the authorities intended to justify their actions which are in gross violation of the law laid down by the Supreme Court and this High Court must be rejected. We must therefore hold that the petitioners will be entitled to a mandamus directing the authorities and the union of India to refund the excess amounts recovered by them on account of inclusion of packing cost, freight and marketing and distribution expenses during the period from74 and amounts recovered in excess during the period75 by including marketing and distribution expenses as a part of the price chargeable to Excise Duty. The petitioners have no doubt made a claim for a total amount of Rs. 8, 90,320. 31. It will however be for them to satisfy the appropriate authorities about the exact quantum of the amount under the heads referred to above. | 1 | 4,812 | 1,908 | ### Instruction:
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out, the matter with regard to the nature of the Excise Duty and the components which have to be included in the price chargeable to Excise Duty had been decided by the Supreme Court and it was merely an application of that law which was called for in the writ petitions in question. An additional circumstance which appears on the facts of the present case is that the goods in question were sold at a controlled price the components of which are unknown. It is not therefore possible to say how much of the Excise Duty formed a part of the controlled price at which the goods were sold to the consumer. Even otherwise, it could therefore not be said that it is fully established that the petitioners have reimbursed themselves to the extent of the amount which they are now seeking to recover. We may make it clear that this is only on additional ground on which we are not inclined to accept the argument that the claim of the petitioners should not be granted.(16) IT was then sought to be contended by Mr. Lokur that a question as to whether the writ petitions had been diligently filed would involve a question of fact and that the diligence of the petitioners could be enquired into only if they come by way of a suit. Cawasjis case makes it clear that for filing the writ petition to recover money paid under mistake of law, the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered as that would normally be the date on which the mistake becomes known to the party. The question with regard to the exclusion of post-manufacturing expenses as part of the price was decided by the Supreme Court by their decision dated 1-12-1972 in A. K. Roy and another v. Voltas Ltd.- 1977 ELT (J 77) = AIR 1973 sc 225 . The argument that was advanced before us was that the limitation should really commence from the decision of the Bombay High Court which was taken in appeal to the Supreme Court in the Voltas case. The decision of the High Court was given in August 1970. There are two reasons on which we should reject this contention. Firstly, it is unfortunate that even through the amount, refund of which is claimed by the petitioner, has now been held to have been recovered without authority of law, such an argument was advanced before us in spite of the clear dictum of the Supreme Court that the government should normally not raise a plea of bar of limitation. We may point out that in a recent decision of the Supreme Court in Madras port Trust v. Hymanshu International, 1979 Excise Law Times (J306), the inadvisability of government relying on technical pleas has been clearly pointed out in the following observations made by Bhagwati, J.:"it is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become available. "(17) THE second ground is that the law relating to the exclusion of the value of containers particularly came to be settled by the decision of this Court in Mansingkas case which came in September 1974 and the law relating to marketing charges came to be settled in Indian Tobacco companys case which came in December 1975. The ratio of these two decisions is now sought to be invoked by the petitioners. These were the decisions material for deciding whether the petition has been filed within three years from the time when the mistake of law became known. There is no doubt that the petition is filed within three years from the time when the decision in Mansingkas case was reported. Apart from this, it is difficult to entertain such a submission from the department which, with open eyes, wants to ignore the decision of this Court and of the supreme Court and is still persisting in the argument that Excise Duty has been properly recovered even though the three disputed components were taken into account for determining the price chargeable to Excise Duty. We are not, therefore, able to see any circumstance which would dissuade us from exercising our jurisdiction in favour of the petitioners especially when under the Constitution, recovery of every single rupee must be an authorised recovery. Any recovery which is unauthorised would be recovery without authority of law and therefore pleas raised on behalf of the authorities intended to justify their actions which are in gross violation of the law laid down by the Supreme Court and this High Court must be rejected. We must therefore hold that the petitioners will be entitled to a mandamus directing the authorities and the union of India to refund the excess amounts recovered by them on account of inclusion of packing cost, freight and marketing and distribution expenses during the period from 15-4-1970 to 30-11-1974 and amounts recovered in excess during the period 11-12-1974 to 4-1-1975 by including marketing and distribution expenses as a part of the price chargeable to Excise Duty. The petitioners have no doubt made a claim for a total amount of Rs. 8, 90,320. 31. It will however be for them to satisfy the appropriate authorities about the exact quantum of the amount under the heads referred to above.
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the excess amountobservations clearly highlight the fact that the State is under an obligation to refund monies which have been recovered without authority ofA careful study of Cawasji case will also show that the relief to the petitioners in that case was declined not on the ground that it would result in unjust enrichment of the company. The claim in the writ petitions was for refund of educational cess for the periodse observations will make it clear that the ground on which the Supreme Court was not inclined to interfere with the order of the High Court was that it was not proper to promote multiplicity of unnecessary legal proceedings. Cawasjis case is, therefore, not an authority for the proposition that the claim for refund must necessarily be rejected on the ground that an order for refund is likely to result in unjust enrichment. It appears from the judgment of the Supreme Court that the fact that the appellants had not given any reasons as to why that claim was not made in the earlier writ petitions heavily weighed with the Supreme Court when they declined to interfere with the decision of the High Court. We are therefore unable to accept the contention advanced on behalf of the Union of India that the petitioners are not entitled to any refund as the levy has already been passed on to theAS already pointed out, the matter with regard to the nature of the Excise Duty and the components which have to be included in the price chargeable to Excise Duty had been decided by the Supreme Court and it was merely an application of that law which was called for in the writ petitions in question. An additional circumstance which appears on the facts of the present case is that the goods in question were sold at a controlled price the components of which are unknown. It is not therefore possible to say how much of the Excise Duty formed a part of the controlled price at which the goods were sold to the consumer. Even otherwise, it could therefore not be said that it is fully established that the petitioners have reimbursed themselves to the extent of the amount which they are now seeking to recover. We may make it clear that this is only on additional ground on which we are not inclined to accept the argument that the claim of the petitioners should not becase makes it clear that for filing the writ petition to recover money paid under mistake of law, the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered as that would normally be the date on which the mistake becomes known to the party. The question with regard to the exclusion ofexpenses as part of the price was decided by the Supreme Court by their decision datedin A. K. Roy and another v. Voltas Ltd.1977 ELT (J 77) = AIR 1973 sc 225 . The argument that was advanced before us was that the limitation should really commence from the decision of the Bombay High Court which was taken in appeal to the Supreme Court in the Voltas case. The decision of the High Court was given in August 1970. There are two reasons on which we should reject this contention. Firstly, it is unfortunate that even through the amount, refund of which is claimed by the petitioner, has now been held to have been recovered without authority of law, such an argument was advanced before us in spite of the clear dictum of the Supreme Court that the government should normally not raise a plea of bar ofTHE second ground is that the law relating to the exclusion of the value of containers particularly came to be settled by the decision of this Court in Mansingkas case which came in September 1974 and the law relating to marketing charges came to be settled in Indian Tobacco companys case which came in December 1975. The ratio of these two decisions is now sought to be invoked by the petitioners. These were the decisions material for deciding whether the petition has been filed within three years from the time when the mistake of law became known. There is no doubt that the petition is filed within three years from the time when the decision in Mansingkas case was reported. Apart from this, it is difficult to entertain such a submission from the department which, with open eyes, wants to ignore the decision of this Court and of the supreme Court and is still persisting in the argument that Excise Duty has been properly recovered even though the three disputed components were taken into account for determining the price chargeable to Excise Duty. We are not, therefore, able to see any circumstance which would dissuade us from exercising our jurisdiction in favour of the petitioners especially when under the Constitution, recovery of every single rupee must be an authorised recovery. Any recovery which is unauthorised would be recovery without authority of law and therefore pleas raised on behalf of the authorities intended to justify their actions which are in gross violation of the law laid down by the Supreme Court and this High Court must be rejected. We must therefore hold that the petitioners will be entitled to a mandamus directing the authorities and the union of India to refund the excess amounts recovered by them on account of inclusion of packing cost, freight and marketing and distribution expenses during the period from74 and amounts recovered in excess during the period75 by including marketing and distribution expenses as a part of the price chargeable to Excise Duty. The petitioners have no doubt made a claim for a total amount of Rs. 8, 90,320. 31. It will however be for them to satisfy the appropriate authorities about the exact quantum of the amount under the heads referred to above.
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Bd. Of Trustees For The Port Of Calcutta Vs. Engineers-De-Space-Age | General law of the land and the agreement(iv) Over the years, the English and Indian courts have acted on the submission that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. The awards has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rules as they appear to, on first impression. Until Jenas case almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainly is a highly desirable feature of law(v) Interest pendente lite is not a matter of substantive law, like interest for the people anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred." 6. It will appears from what the Constitution Bench stated to be the legal position, that ordinarily a person who is deprived of his money to which he is legitimately entitled as of right is entitled to be compensated in deprivation thereof, call it by whatever name. This would be in terms of the principle laid down in Section 34 of the Code of Civil Procedure. Their Lordships pointed out that there was no reasons or principle to hold otherwise in the case of an arbitrator. Pointing out that arbitrator is an alternative forum for resolution of disputes arising between the parties, it said that he must have the power to decide all disputes and differences arising between the parties and if he were to be denied the power to award interest pendente lite, the party entitled thereto would be required to go to a Court which would result in multiplicity of proceedings, a situation which the Court which endeavour to a void. Reliance was, however, placed on the observation in sub-para (iii) wherein it is pointed out that an arbitrator is a creature of an agreement and if the agreement between the parties prohibits the payment of interest pendente lite the arbitrator must act in accordance therewith. In other words, according to their Lordships the arbitrator is expected to act and make his award in accordance with the general law of the land but subject to an agreement, provided, the agreement is valid and legal. Lastly, it was pointed out that interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference. Their Lordships concluded that where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute is referred to the arbitrator, he shall have the power to award interest pendente lite for the simple reason that in such a case it is presumed that interest was an implied term of the agreement between the parties; it is then a matter of exercise of discretion by the arbitrator. The position in law has, therefore, been clearly stated in the aforesaid decision of the Constitution Bench7. We are not dealing with a case in regard to award of interest for the period prior to the reference8. We are dealing with a case in regard to award of interest by the Arbitrator post reference. The short question, therefore, is whether in view of sub-clause (g) of Clause 13 of the contract extracted earlier the Arbitrator was prohibited from granting interest under the contract. Now the term in sub-clause (g) merely prohibits the Commissioner from entertaining any claim for interest and does not prohibit the Arbitrator from awarding interest. The opening words no claim for interest will be entertained by the Commissioner clearly establishes that the intention was to prohibit the Commissioner from granting interest on account of delayed payment to the contractor. Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the Arbitrator is not, in any manner, stifled by this term of the contract and the Arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified. We are, therefore, of the opinion that under the clause of the contract the Arbitrator was in no manner prohibited from awarding interest pendente lite9. Looked at from another point, if there was a dispute as to whether under this term of the contract the Arbitrator was prohibited from awarding interest pendente lite, that was a matter which fell within the jurisdiction of the Arbitrator, as the arbitrator would have to interpret sub-clause (g) of Clause 13 of the contract and decide whether that clause prohibits him from awarding interest pendente lite. In that case it cannot be said that the Arbitrator had wandered outside the contract to deny to him jurisdiction to decide the question regarding payment of interest pendente lite. Even if we were to accept the contention urged by the learned counsel for the appellant placing reliance on paragraphs 26 and 29 of the Associated Engineering Company case (supra) we think, that the Arbitrator was well within the jurisdiction in awarding interest pendente lite | 0[ds]6. It will appears from what the Constitution Bench stated to be the legal position, that ordinarily a person who is deprived of his money to which he is legitimately entitled as of right is entitled to be compensated in deprivation thereof, call it by whatever name. This would be in terms of the principle laid down in Section 34 of the Code of Civil Procedure. Their Lordships pointed out that there was no reasons or principle to hold otherwise in the case of an arbitrator. Pointing out that arbitrator is an alternative forum for resolution of disputes arising between the parties, it said that he must have the power to decide all disputes and differences arising between the parties and if he were to be denied the power to award interest pendente lite, the party entitled thereto would be required to go to a Court which would result in multiplicity of proceedings, a situation which the Court which endeavour to a void. Reliance was, however, placed on the observation in sub-para (iii) wherein it is pointed out that an arbitrator is a creature of an agreement and if the agreement between the parties prohibits the payment of interest pendente lite the arbitrator must act in accordance therewith. In other words, according to their Lordships the arbitrator is expected to act and make his award in accordance with the general law of the land but subject to an agreement, provided, the agreement is valid and legal. Lastly, it was pointed out that interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference. Their Lordships concluded that where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute is referred to the arbitrator, he shall have the power to award interest pendente lite for the simple reason that in such a case it is presumed that interest was an implied term of the agreement between the parties; it is then a matter of exercise of discretion by the arbitrator. The position in law has, therefore, been clearly stated in the aforesaid decision of the Constitution Bench7. We are not dealing with a case in regard to award of interest for the period prior to the reference8. We are dealing with a case in regard to award of interest by the Arbitrator post reference. The short question, therefore, is whether in view of sub-clause (g) of Clause 13 of the contract extracted earlier the Arbitrator was prohibited from granting interest under the contract. Now the term in sub-clause (g) merely prohibits the Commissioner from entertaining any claim for interest and does not prohibit the Arbitrator from awarding interest. The opening words no claim for interest will be entertained by the Commissioner clearly establishes that the intention was to prohibit the Commissioner from granting interest on account of delayed payment to the contractor. Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the Arbitrator is not, in any manner, stifled by this term of the contract and the Arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified. We are, therefore, of the opinion that under the clause of the contract the Arbitrator was in no manner prohibited from awarding interest pendente lite9. Looked at from another point, if there was a dispute as to whether under this term of the contract the Arbitrator was prohibited from awarding interest pendente lite, that was a matter which fell within the jurisdiction of the Arbitrator, as the arbitrator would have to interpret sub-clause (g) of Clause 13 of the contract and decide whether that clause prohibits him from awarding interest pendente lite. In that case it cannot be said that the Arbitrator had wandered outside the contract to deny to him jurisdiction to decide the question regarding payment of interest pendente lite. Even if we were to accept the contention urged by the learned counsel for the appellant placing reliance on paragraphs 26 and 29 of the Associated Engineering Company case (supra) we think, that the Arbitrator was well within the jurisdiction in awarding interest pendente lite | 0 | 2,101 | 881 | ### Instruction:
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General law of the land and the agreement(iv) Over the years, the English and Indian courts have acted on the submission that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. The awards has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rules as they appear to, on first impression. Until Jenas case almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainly is a highly desirable feature of law(v) Interest pendente lite is not a matter of substantive law, like interest for the people anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred." 6. It will appears from what the Constitution Bench stated to be the legal position, that ordinarily a person who is deprived of his money to which he is legitimately entitled as of right is entitled to be compensated in deprivation thereof, call it by whatever name. This would be in terms of the principle laid down in Section 34 of the Code of Civil Procedure. Their Lordships pointed out that there was no reasons or principle to hold otherwise in the case of an arbitrator. Pointing out that arbitrator is an alternative forum for resolution of disputes arising between the parties, it said that he must have the power to decide all disputes and differences arising between the parties and if he were to be denied the power to award interest pendente lite, the party entitled thereto would be required to go to a Court which would result in multiplicity of proceedings, a situation which the Court which endeavour to a void. Reliance was, however, placed on the observation in sub-para (iii) wherein it is pointed out that an arbitrator is a creature of an agreement and if the agreement between the parties prohibits the payment of interest pendente lite the arbitrator must act in accordance therewith. In other words, according to their Lordships the arbitrator is expected to act and make his award in accordance with the general law of the land but subject to an agreement, provided, the agreement is valid and legal. Lastly, it was pointed out that interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference. Their Lordships concluded that where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute is referred to the arbitrator, he shall have the power to award interest pendente lite for the simple reason that in such a case it is presumed that interest was an implied term of the agreement between the parties; it is then a matter of exercise of discretion by the arbitrator. The position in law has, therefore, been clearly stated in the aforesaid decision of the Constitution Bench7. We are not dealing with a case in regard to award of interest for the period prior to the reference8. We are dealing with a case in regard to award of interest by the Arbitrator post reference. The short question, therefore, is whether in view of sub-clause (g) of Clause 13 of the contract extracted earlier the Arbitrator was prohibited from granting interest under the contract. Now the term in sub-clause (g) merely prohibits the Commissioner from entertaining any claim for interest and does not prohibit the Arbitrator from awarding interest. The opening words no claim for interest will be entertained by the Commissioner clearly establishes that the intention was to prohibit the Commissioner from granting interest on account of delayed payment to the contractor. Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the Arbitrator is not, in any manner, stifled by this term of the contract and the Arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified. We are, therefore, of the opinion that under the clause of the contract the Arbitrator was in no manner prohibited from awarding interest pendente lite9. Looked at from another point, if there was a dispute as to whether under this term of the contract the Arbitrator was prohibited from awarding interest pendente lite, that was a matter which fell within the jurisdiction of the Arbitrator, as the arbitrator would have to interpret sub-clause (g) of Clause 13 of the contract and decide whether that clause prohibits him from awarding interest pendente lite. In that case it cannot be said that the Arbitrator had wandered outside the contract to deny to him jurisdiction to decide the question regarding payment of interest pendente lite. Even if we were to accept the contention urged by the learned counsel for the appellant placing reliance on paragraphs 26 and 29 of the Associated Engineering Company case (supra) we think, that the Arbitrator was well within the jurisdiction in awarding interest pendente lite
### Response:
0
### Explanation:
6. It will appears from what the Constitution Bench stated to be the legal position, that ordinarily a person who is deprived of his money to which he is legitimately entitled as of right is entitled to be compensated in deprivation thereof, call it by whatever name. This would be in terms of the principle laid down in Section 34 of the Code of Civil Procedure. Their Lordships pointed out that there was no reasons or principle to hold otherwise in the case of an arbitrator. Pointing out that arbitrator is an alternative forum for resolution of disputes arising between the parties, it said that he must have the power to decide all disputes and differences arising between the parties and if he were to be denied the power to award interest pendente lite, the party entitled thereto would be required to go to a Court which would result in multiplicity of proceedings, a situation which the Court which endeavour to a void. Reliance was, however, placed on the observation in sub-para (iii) wherein it is pointed out that an arbitrator is a creature of an agreement and if the agreement between the parties prohibits the payment of interest pendente lite the arbitrator must act in accordance therewith. In other words, according to their Lordships the arbitrator is expected to act and make his award in accordance with the general law of the land but subject to an agreement, provided, the agreement is valid and legal. Lastly, it was pointed out that interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference. Their Lordships concluded that where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute is referred to the arbitrator, he shall have the power to award interest pendente lite for the simple reason that in such a case it is presumed that interest was an implied term of the agreement between the parties; it is then a matter of exercise of discretion by the arbitrator. The position in law has, therefore, been clearly stated in the aforesaid decision of the Constitution Bench7. We are not dealing with a case in regard to award of interest for the period prior to the reference8. We are dealing with a case in regard to award of interest by the Arbitrator post reference. The short question, therefore, is whether in view of sub-clause (g) of Clause 13 of the contract extracted earlier the Arbitrator was prohibited from granting interest under the contract. Now the term in sub-clause (g) merely prohibits the Commissioner from entertaining any claim for interest and does not prohibit the Arbitrator from awarding interest. The opening words no claim for interest will be entertained by the Commissioner clearly establishes that the intention was to prohibit the Commissioner from granting interest on account of delayed payment to the contractor. Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the Arbitrator is not, in any manner, stifled by this term of the contract and the Arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified. We are, therefore, of the opinion that under the clause of the contract the Arbitrator was in no manner prohibited from awarding interest pendente lite9. Looked at from another point, if there was a dispute as to whether under this term of the contract the Arbitrator was prohibited from awarding interest pendente lite, that was a matter which fell within the jurisdiction of the Arbitrator, as the arbitrator would have to interpret sub-clause (g) of Clause 13 of the contract and decide whether that clause prohibits him from awarding interest pendente lite. In that case it cannot be said that the Arbitrator had wandered outside the contract to deny to him jurisdiction to decide the question regarding payment of interest pendente lite. Even if we were to accept the contention urged by the learned counsel for the appellant placing reliance on paragraphs 26 and 29 of the Associated Engineering Company case (supra) we think, that the Arbitrator was well within the jurisdiction in awarding interest pendente lite
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Consumer Unity and Trust Society Vs. The Chairman & Managing Director, Bank of Baroda, Calcutta | its being illegal due to employees resorting to it during pendency of conciliation proceedings before the Commission have not been assailed in this appeal. Even the finding that the bank was prevented from rendering any skeleton service to its customers due to unruly behaviour of the employees who not only created barricades by forming human wall before the bank but even mutilated and defaced the signature on cheques issued by the bank to cater to urgent demands of its customers by colluding with employees of Reserve Bank of India is well founded and unassailable. But what was argued was that since the customers of the bank were deprived of the services due to strike for 54 days, the bank was liable to pay such amounts as, "(a) Interest on Overdrafts accounts to be reimbursed at lending rate during the period the account was not operative.(b) Re-imbursement of interest at the lending rate less actual rate of interest creditable to the saving deposit account holders.(c) Interest at the lending rate on the negotiable instruments held in suspense during this period to be reimbursed to the customers.(d) Re-imbursement of interest at which the customers may have borrowed money from elsewhere to meet with their exigencies for the period during which they could not lay hands on their own money lying stuck in or due to the Bank.(e) Reimbursement of wharfage, demurrage and such other costs on consignments, documents of which were lying in the Bank or could not be delivered to the Bank during this period and the related period before and after this strike.(f) Such consequential damages and losses incurred by the customers resultant of the strike, including compensation for mental and physical anguish and agony caused due to non - availability of the money or against a limit/loan or over-draft facility with the Bank.(g) Such other losses and claims, which may arise out of the actual claims to be lodged by the customers and/or assessed for the strike period after making "thorough assessment through an independent agency". To determine merits of this submission, it is necessary to advert to certain provisions of the Act. A consumer or any registered voluntary consumer association, like the appellant, is entitled to file a complaint, as provided in sub-clause (iii) of Clause (c) of sub-section (1) of the Act for deficiency in service. `Service has been defined in clause (o) of Section 2 of the Act and reads as under : "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service." The expression, `any description widens the ambit of the Section and extends it to any service. Therefore, payment of interest on overdrafts, interest at lending rate, wharfage, demurrage etc. claimed by the appellant may be covered in the expression `service. But `deficiency in service has been defined in clause (g) of Section 2 of the Act as under : "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Even though the depositors were deprived of the service of the bank but the deficiency did not arise due to one of the reasons mentioned in clause (g). The shortcoming in the service by bank did not arise due to failure on the part of bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the bank not because of any deficiency on the part of the bank but due to strike resorted to by the employees who almost physically prevented the bank from functioning, the failure of the bank to render service could not be held to give rise to claim for recovery of any amount under the Act. Further, the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission by sub-rule (b) of Rule 19 of the Rules framed under the Act. Clause (d) of sub-section (1) of Section 14 is extracted below : "to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party". Each of these expressions used in the sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means, `invasion of any legally protected interest of another. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this Section. The bank has not been found to be negligent in discharge of its duties. Therefore, even if any loss or damage was caused to any depositor but it was not caused due to negligence of bank then no claim of damages under the Act was maintainable. | 0[ds]Even the finding that the bank was prevented from rendering any skeleton service to its customers due to unruly behaviour of the employees who not only created barricades by forming human wall before the bank but even mutilated and defaced the signature on cheques issued by the bank to cater to urgent demands of its customers by colluding with employees of Reserve Bank of India is well founded anddetermine merits of this submission, it is necessary to advert to certain provisions of the Act. A consumer or any registered voluntary consumer association, like the appellant, is entitled to file a complaint, as provided in sub-clause (iii) of Clause (c) of sub-section (1) of the Act for deficiency inthough the depositors were deprived of the service of the bank but the deficiency did not arise due to one of the reasons mentioned in clause (g). The shortcoming in the service by bank did not arise due to failure on the part of bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the bank not because of any deficiency on the part of the bank but due to strike resorted to by the employees who almost physically prevented the bank from functioning, the failure of the bank to render service could not be held to give rise to claim for recovery of any amount under the Act. Further, the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission by sub-rule (b) of Rule 19 of the Rules framed under theof these expressions used in the sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means, `invasion of any legally protected interest of another. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this Section. The bank has not been found to be negligent in discharge of its duties. Therefore, even if any loss or damage was caused to any depositor but it was not caused due to negligence of bank then no claim of damages under the Act was maintainable. | 0 | 1,230 | 533 | ### 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 being illegal due to employees resorting to it during pendency of conciliation proceedings before the Commission have not been assailed in this appeal. Even the finding that the bank was prevented from rendering any skeleton service to its customers due to unruly behaviour of the employees who not only created barricades by forming human wall before the bank but even mutilated and defaced the signature on cheques issued by the bank to cater to urgent demands of its customers by colluding with employees of Reserve Bank of India is well founded and unassailable. But what was argued was that since the customers of the bank were deprived of the services due to strike for 54 days, the bank was liable to pay such amounts as, "(a) Interest on Overdrafts accounts to be reimbursed at lending rate during the period the account was not operative.(b) Re-imbursement of interest at the lending rate less actual rate of interest creditable to the saving deposit account holders.(c) Interest at the lending rate on the negotiable instruments held in suspense during this period to be reimbursed to the customers.(d) Re-imbursement of interest at which the customers may have borrowed money from elsewhere to meet with their exigencies for the period during which they could not lay hands on their own money lying stuck in or due to the Bank.(e) Reimbursement of wharfage, demurrage and such other costs on consignments, documents of which were lying in the Bank or could not be delivered to the Bank during this period and the related period before and after this strike.(f) Such consequential damages and losses incurred by the customers resultant of the strike, including compensation for mental and physical anguish and agony caused due to non - availability of the money or against a limit/loan or over-draft facility with the Bank.(g) Such other losses and claims, which may arise out of the actual claims to be lodged by the customers and/or assessed for the strike period after making "thorough assessment through an independent agency". To determine merits of this submission, it is necessary to advert to certain provisions of the Act. A consumer or any registered voluntary consumer association, like the appellant, is entitled to file a complaint, as provided in sub-clause (iii) of Clause (c) of sub-section (1) of the Act for deficiency in service. `Service has been defined in clause (o) of Section 2 of the Act and reads as under : "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service." The expression, `any description widens the ambit of the Section and extends it to any service. Therefore, payment of interest on overdrafts, interest at lending rate, wharfage, demurrage etc. claimed by the appellant may be covered in the expression `service. But `deficiency in service has been defined in clause (g) of Section 2 of the Act as under : "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Even though the depositors were deprived of the service of the bank but the deficiency did not arise due to one of the reasons mentioned in clause (g). The shortcoming in the service by bank did not arise due to failure on the part of bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the bank not because of any deficiency on the part of the bank but due to strike resorted to by the employees who almost physically prevented the bank from functioning, the failure of the bank to render service could not be held to give rise to claim for recovery of any amount under the Act. Further, the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission by sub-rule (b) of Rule 19 of the Rules framed under the Act. Clause (d) of sub-section (1) of Section 14 is extracted below : "to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party". Each of these expressions used in the sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means, `invasion of any legally protected interest of another. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this Section. The bank has not been found to be negligent in discharge of its duties. Therefore, even if any loss or damage was caused to any depositor but it was not caused due to negligence of bank then no claim of damages under the Act was maintainable.
### Response:
0
### Explanation:
Even the finding that the bank was prevented from rendering any skeleton service to its customers due to unruly behaviour of the employees who not only created barricades by forming human wall before the bank but even mutilated and defaced the signature on cheques issued by the bank to cater to urgent demands of its customers by colluding with employees of Reserve Bank of India is well founded anddetermine merits of this submission, it is necessary to advert to certain provisions of the Act. A consumer or any registered voluntary consumer association, like the appellant, is entitled to file a complaint, as provided in sub-clause (iii) of Clause (c) of sub-section (1) of the Act for deficiency inthough the depositors were deprived of the service of the bank but the deficiency did not arise due to one of the reasons mentioned in clause (g). The shortcoming in the service by bank did not arise due to failure on the part of bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the bank not because of any deficiency on the part of the bank but due to strike resorted to by the employees who almost physically prevented the bank from functioning, the failure of the bank to render service could not be held to give rise to claim for recovery of any amount under the Act. Further, the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission by sub-rule (b) of Rule 19 of the Rules framed under theof these expressions used in the sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means, `invasion of any legally protected interest of another. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this Section. The bank has not been found to be negligent in discharge of its duties. Therefore, even if any loss or damage was caused to any depositor but it was not caused due to negligence of bank then no claim of damages under the Act was maintainable.
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M/S. Acqueous Victuals Pvt. Ltd Vs. State Of U.P. | suffers waste or deterioration to some extent, though not totally destroyed or used up and, therefore, it could be held to have been used up to that extent. On the facts and circumstance of the present cases, the aforesaid decision is of no avail to the respondent-Municipalities as it is nobodys case that if empty bottles were actually taken out of the municipal limits after their contents were discharged within the municipal limits, they would get used up even partially only because they remained for some time within the municipal limits containing the beverages without having reposed therein.Learned counsel for the State of Uttar Pradesh placed reliance on the Dictionary meaning of the term repose as found in Shorter Oxford Dictionary, Volume 2, 3rd Edition, p. 1799, wherein one of the meanings of the word repose is mentioned as temporary rest or cessation from activity. That may be the dictionary meaning but the term repose in the context of octroi duty is treated by the Constitution Bench of this Court in Burmah Shells case (supra) as a synonym for final resting of the commodity without being later on taken out of municipal limits. It must, therefore, be held that the commodity which is imported within the municipal limits must either be sold or consumed or used up completely or must be subjected to a continuous the without total exhaustion but in every case the commodity concerned must not have left the municipal limits. The word repose as explained by the Constitution Bench in the aforesaid decision, therefore, has a special meaning and, therefore, the dictionary meaning of the word repose cannot be of any assistance in the context of the octroi levy as interpreted by this Court in Burmah Shells case (supra). 13. We may also mention that our attention was invited by learned counsel for the parties to certain decision of this Court dealing with sales tax in deciding the question whether the value of the bottles could be subjected to sales tax and liable to be included in the taxable turn over including the value of the Beer contained therein. The decisions in Premier Braveries vs. State of Kerala and Tata Engineering &Locomative Company Ltd. &Anr. vs. Municipal Corporation of the City of Thane &Ors. [(1 9930 (1) Suppl(SCC) 361] cannot be of any avail to the learned counsel for the writ petitioner as strictly speaking we are not concerned here with such a quest ion in these proceedings, and especially when we have direct decisions of the Constitution Bench of this Court in Burmah Shells case (supra) and S.M. Ram Lals case (supra).As a result of the aforesaid discussion, therefore, we hold that if beverages in liquid from contained in bottles are brought within the municipal limits and after such beverages are taken out of these bottles, those very empty bottles are found to have been re-exported from the municipal limits without being sold therein, the octroi duty paid on the weight of such bottles earlier could be subjected to claim for refund by the exporter of such empty bottles if the relevant factual data is found to the satisfaction of the authorities before whom such claim id lodged. The first point is, therefore, answered by holding that if the writ petitioner proves to the satisfaction of authorities that very bottles in which beverages were imported in given contingency for sale and consumption within the municipal limits were actually taken out of municipal limits as empty bottles for re-cycling without meanwhile, the octroi duty paid at the time of their entry on the weight of bottles could be subjected to claim for refun d subject to the rider that it is also shown by the writ petitioner that the octroi duty on such empty bottles had not been passed on to the consumers or any other person so that the writ petitioner will not be found to be guilty of unjust enrichment by getting such refund. This question was also to be examined by the authorities before whom claim of refund is lodged. As held by the Constitution Bench of this Court in Mafatlal Industries Ltd. &Ors. vs. Union of India &Ors., the question of unjust enrichment pertaining to such refund claims has to be examined by the authorities concerned. Before parting with discussion on Point No.1, we may also mention that one decision of this court in Nagar Mahapali ka, Meerut vs. Prem Nath Monga Bottlers pvt. Ltd. &Anr. was pressed in service by learned counsel for the writ petitioner. In our view that decision is of no avail to the writ petitioner on the facts of the present case. This Court in the said decision was concerned with the question whether the exemption of octroi granted to mineral water bottles would include aerated water bottles also. It was held that the mineral water bottles would include latter type of bottles also. Such is not the controversy before us. Point No.1 is answered accordingly.In the light of the decision on Point No.1 Point No.2 will naturally require consideration of the question as to what type of directions can be issued in the present case. It is obvious that the dispute centres round the levy of octroi on the weight of the containers, namely, the bottles imported and brought within the municipal limits of four respondent-Municipalities between 1980 and 1987 s there was already stay of recovery of octroi duty from the High Court on the weight of such bottles from 1983 pending the writ petitions till 1987, the writ petitioner had no occasion to put forth their claim for refund till then. It is of course true that for earlier period from 1980 to 1983 when there was no stay from any court, the writ petitioner could have lodged claims for refund but presumably because the writ petitioner thereafter raised this contention before the High Court and the writ petitions remained pending before the High Court for a number of years such claims were not lodge. | 1[ds]>It is | 1 | 8,510 | 7 | ### 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:
suffers waste or deterioration to some extent, though not totally destroyed or used up and, therefore, it could be held to have been used up to that extent. On the facts and circumstance of the present cases, the aforesaid decision is of no avail to the respondent-Municipalities as it is nobodys case that if empty bottles were actually taken out of the municipal limits after their contents were discharged within the municipal limits, they would get used up even partially only because they remained for some time within the municipal limits containing the beverages without having reposed therein.Learned counsel for the State of Uttar Pradesh placed reliance on the Dictionary meaning of the term repose as found in Shorter Oxford Dictionary, Volume 2, 3rd Edition, p. 1799, wherein one of the meanings of the word repose is mentioned as temporary rest or cessation from activity. That may be the dictionary meaning but the term repose in the context of octroi duty is treated by the Constitution Bench of this Court in Burmah Shells case (supra) as a synonym for final resting of the commodity without being later on taken out of municipal limits. It must, therefore, be held that the commodity which is imported within the municipal limits must either be sold or consumed or used up completely or must be subjected to a continuous the without total exhaustion but in every case the commodity concerned must not have left the municipal limits. The word repose as explained by the Constitution Bench in the aforesaid decision, therefore, has a special meaning and, therefore, the dictionary meaning of the word repose cannot be of any assistance in the context of the octroi levy as interpreted by this Court in Burmah Shells case (supra). 13. We may also mention that our attention was invited by learned counsel for the parties to certain decision of this Court dealing with sales tax in deciding the question whether the value of the bottles could be subjected to sales tax and liable to be included in the taxable turn over including the value of the Beer contained therein. The decisions in Premier Braveries vs. State of Kerala and Tata Engineering &Locomative Company Ltd. &Anr. vs. Municipal Corporation of the City of Thane &Ors. [(1 9930 (1) Suppl(SCC) 361] cannot be of any avail to the learned counsel for the writ petitioner as strictly speaking we are not concerned here with such a quest ion in these proceedings, and especially when we have direct decisions of the Constitution Bench of this Court in Burmah Shells case (supra) and S.M. Ram Lals case (supra).As a result of the aforesaid discussion, therefore, we hold that if beverages in liquid from contained in bottles are brought within the municipal limits and after such beverages are taken out of these bottles, those very empty bottles are found to have been re-exported from the municipal limits without being sold therein, the octroi duty paid on the weight of such bottles earlier could be subjected to claim for refund by the exporter of such empty bottles if the relevant factual data is found to the satisfaction of the authorities before whom such claim id lodged. The first point is, therefore, answered by holding that if the writ petitioner proves to the satisfaction of authorities that very bottles in which beverages were imported in given contingency for sale and consumption within the municipal limits were actually taken out of municipal limits as empty bottles for re-cycling without meanwhile, the octroi duty paid at the time of their entry on the weight of bottles could be subjected to claim for refun d subject to the rider that it is also shown by the writ petitioner that the octroi duty on such empty bottles had not been passed on to the consumers or any other person so that the writ petitioner will not be found to be guilty of unjust enrichment by getting such refund. This question was also to be examined by the authorities before whom claim of refund is lodged. As held by the Constitution Bench of this Court in Mafatlal Industries Ltd. &Ors. vs. Union of India &Ors., the question of unjust enrichment pertaining to such refund claims has to be examined by the authorities concerned. Before parting with discussion on Point No.1, we may also mention that one decision of this court in Nagar Mahapali ka, Meerut vs. Prem Nath Monga Bottlers pvt. Ltd. &Anr. was pressed in service by learned counsel for the writ petitioner. In our view that decision is of no avail to the writ petitioner on the facts of the present case. This Court in the said decision was concerned with the question whether the exemption of octroi granted to mineral water bottles would include aerated water bottles also. It was held that the mineral water bottles would include latter type of bottles also. Such is not the controversy before us. Point No.1 is answered accordingly.In the light of the decision on Point No.1 Point No.2 will naturally require consideration of the question as to what type of directions can be issued in the present case. It is obvious that the dispute centres round the levy of octroi on the weight of the containers, namely, the bottles imported and brought within the municipal limits of four respondent-Municipalities between 1980 and 1987 s there was already stay of recovery of octroi duty from the High Court on the weight of such bottles from 1983 pending the writ petitions till 1987, the writ petitioner had no occasion to put forth their claim for refund till then. It is of course true that for earlier period from 1980 to 1983 when there was no stay from any court, the writ petitioner could have lodged claims for refund but presumably because the writ petitioner thereafter raised this contention before the High Court and the writ petitions remained pending before the High Court for a number of years such claims were not lodge.
### Response:
1
### Explanation:
>It is
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Anil Kumar Upadhyay Vs. The Director General, SSB and Others | Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under: 19. The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable. 9. In the present case, the appellant was imposed the penalty of removal from service after the charges levelled against him stood proved by the disciplinary authority in an enquiry held against him after following the procedure prescribed under the SSB Rules. The nature of allegations against the appellant are grave in nature. He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated. As a member of the disciplined force – SSB, he was expected to follow the rules. He was apprehended inside the Mahila Barrack by six female constables. As observed by this Court in the case of Diler Singh (supra), a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of removal from service, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority. 10. From the judgment and order passed by the learned Single Judge, which has been interfered with by the Division Bench, it appears that what weighed with the learned Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and who was also subjected to disciplinary proceedings and was found guilty of both the charges, was inflicted with a lesser punishment and therefore punishment of removal from service imposed on the delinquent official was disproportionate. However, the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable. 11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of removal from service by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant – delinquent. | 0[ds]6. The appellant herein, who at the relevant time was serving as a Head Constable, was subjected to disciplinary proceedings for having entered the Mahila Barrack of the Battalion at around 00:15 hours on the intervening night of 14-15th April, 2013. He was charged with an indisciplined conduct relating to compromising the security of the occupants of the Mahila Barrack. He was apprehended inside the Mahila Barrack by six female constables. Thereafter he was subjected to the disciplinary proceedings. All due opportunities were afforded to him. He was found guilty based on cogent material and evidence and on appreciation of evidence led by both the sides. Only thereafter, the disciplinary authority initially imposed the punishment of dismissal, however, subsequently, the penalty of dismissal was converted to removal from service. The punishment of removal from service was challenged by the delinquent before the High Court. The learned Single Judge, though held that the disciplinary proceedings were conducted after following due procedure under the SSB Rules and due opportunities were afforded to him, thereafter interfered with the order of punishment imposed by the disciplinary authority by observing that as the female constable who allowed the appellant – Head Constable to enter the Mahila Barrack and who was also found guilty of both the charges was inflicted with the lesser punishment and the appellant was inflicted the punishment of removal from service, which can be said to be disproportionate and thereby the learned Single Judge interfered with the order of punishment imposed by the disciplinary authority and set aside the punishment of removal from service and remitted the matter back to the disciplinary authority to impose a lesser punishment. The same has been interfered with by the Division Bench of the High Court and the order of punishment imposed by the disciplinary authority has been restored.8. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to:i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as Wednesbury principles.In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:19. The principles discussed above can be summed up and summarised as follows:19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.9. In the present case, the appellant was imposed the penalty of removal from service after the charges levelled against him stood proved by the disciplinary authority in an enquiry held against him after following the procedure prescribed under the SSB Rules. The nature of allegations against the appellant are grave in nature. He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated. As a member of the disciplined force – SSB, he was expected to follow the rules. He was apprehended inside the Mahila Barrack by six female constables. As observed by this Court in the case of Diler Singh (supra), a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of removal from service, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority.10. From the judgment and order passed by the learned Single Judge, which has been interfered with by the Division Bench, it appears that what weighed with the learned Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and who was also subjected to disciplinary proceedings and was found guilty of both the charges, was inflicted with a lesser punishment and therefore punishment of removal from service imposed on the delinquent official was disproportionate. However, the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of removal from service by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant – delinquent. | 0 | 4,277 | 1,532 | ### 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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Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under: 19. The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable. 9. In the present case, the appellant was imposed the penalty of removal from service after the charges levelled against him stood proved by the disciplinary authority in an enquiry held against him after following the procedure prescribed under the SSB Rules. The nature of allegations against the appellant are grave in nature. He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated. As a member of the disciplined force – SSB, he was expected to follow the rules. He was apprehended inside the Mahila Barrack by six female constables. As observed by this Court in the case of Diler Singh (supra), a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of removal from service, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority. 10. From the judgment and order passed by the learned Single Judge, which has been interfered with by the Division Bench, it appears that what weighed with the learned Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and who was also subjected to disciplinary proceedings and was found guilty of both the charges, was inflicted with a lesser punishment and therefore punishment of removal from service imposed on the delinquent official was disproportionate. However, the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable. 11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of removal from service by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant – delinquent.
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### Explanation:
the well-known principles known as Wednesbury principles.In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:19. The principles discussed above can be summed up and summarised as follows:19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.9. In the present case, the appellant was imposed the penalty of removal from service after the charges levelled against him stood proved by the disciplinary authority in an enquiry held against him after following the procedure prescribed under the SSB Rules. The nature of allegations against the appellant are grave in nature. He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated. As a member of the disciplined force – SSB, he was expected to follow the rules. He was apprehended inside the Mahila Barrack by six female constables. As observed by this Court in the case of Diler Singh (supra), a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of removal from service, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority.10. From the judgment and order passed by the learned Single Judge, which has been interfered with by the Division Bench, it appears that what weighed with the learned Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and who was also subjected to disciplinary proceedings and was found guilty of both the charges, was inflicted with a lesser punishment and therefore punishment of removal from service imposed on the delinquent official was disproportionate. However, the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of removal from service by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant – delinquent.
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State Of Rajasthan Vs. M/S. D.P. Metals | such mechanism as it deems fit, in other words, to check evasion of tax and in doing so, if any obligation is cast on any person having connections with the consignor or consignee in relation to such goods, maybe other than a dealer, to perform such obligation in aid, to check evasion and in case he is made liable for any offence for his dereliction of duty or deliberate false act contrary to what he is obligated to do. In our opinion it cannot be constructed to be beyond the competence of the State Legislature. The impugned provisions are not charging sections, no tax liability is placed on the transporters. We find neither Sections 29, 30, 32 and 36-A nor Rules 46-A, 63-A and 64. A lack any legislative competence. They are within the legislative competence of the State and would fall under List II of Entry 54 of the Seventh Schedule of the Constitution of India." 28. It also noticed the decisions of this Court in Sodhi Transport Companys case (supra)/. After referring to Sant Lals case (supra) it was held that the same was clearly distinguishable inasmuch as the provisions of the Haryana General Sales Tax Act were not similar to those which were impugned in the Tripura Associations case (supra). It appears to us that the scheme and the provisions under the Tripura Sales Tax Act and the Rules are similar to that contained in Section 37 of the Haryana Sales Tax Act as well as to Section 22-A of the Rajasthan Sales Tax Act, 1954 and Section 78 of the Rajasthan Sales Tax Act,m 1994.29. It is thus settled law that provisions to check evasion of tax are within the legislative competence of the States under Entry 54 of the list II. This being so, the provisions to make the imposition of tax efficacious or to prevent evasion of tax are within the legislative competence. Unlike the dalals and forwarding agents, as in Sant Lals case, the persons referred to in Section 78(2) are persons concerned with the movement of goods which are sold are likely to be sold. With there begin no valid challenge to Section 78(2) a provisions contained in sub-section (5) of Section 78 which provides for levy of penalty in case of non-compliance of Section 78(2) can only be regarded as consequential and valid. if there was legislative competence to enact Section 78(2) then the same power contained in Entry 54 of List II could enable the State Legislature to provide for consequence of non-compliance by incorporating sub-section (5) therein. Section 78(5) and Section 78(8) are part of an integral scheme and deal with two separate classes of people referred to in Section 78(2).30. Unlike Sant Lals case, hereunder Section 78(5) levy of penalty is only on the person in charge of the goods. it is he who should have all the requisite documents relating to the title or sale of the goods which are begin transported. Penalty under Section 78(5) is leviable under two circumstances. Firstly if there is non-compliance with Section 78(2)(a) i.e. not carrying the documents mentioned in that sub-clause or, secondly if false or forged documents or declaration is submitted. This sub-section cannot relate to personal belongings whcih are not meant for sale but would relate to those types of goods in respect of which documents referred to in Section 78(2)(a) exist or can exist. 30. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in sub-clause 2(a) are not produced, even though the same should exist, woudl clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar, 1964(1) SCR 897 at 910; "The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act. | 1[ds]23. From the aforesaid decisions, it would be clear that the consistent view of this Court since the case of Sodhi Transport Companys case (supra) has been that provisions similar or Section 78(5) have been held to be within the legislative competence of the State. In fact, validity of Section 22-A and 22-B of the Rajasthan Sales Tax Act which was specifically challenged in M/s Indian Roadways case (supra) and Sarna Transport case (supra) were upheld by this Court and the said provisions are in pari materia with the new Section 78 of the 1994 Act.The applicability of the decisions of Sant Lal;s case (supra) came up for consideration in Tripura Goods Transport Association and another v. Commissioner of Taxes and others, 1999(2) SCC 2543. The appellants therein were an association which was doing the business of transporting goods within and outside the State of Tripura. On the ground that they were transporters and not dealers within the meaning of the Act, the appellants therein had challenged different provisions of the Tripura Sales Tax Act and the Rules framed thereunder which had required them to obtain a Certificate of Registration and to comply with other formalities prescribed under the ACt and Rules. Rules were framed under the Act which were also impugned. Rule 46-A, inter alia, required the transporter to give a complete and correct account of the goods carried by him in a prescribed form which could be inspected by the officer in charge of the check-post or the barrier about he correctness of the statements made therein. Rule 63-A gave the power of search at any place to an officer in charge of the check-post, Superintendent of Taxes or any officer specially empowered by the Commissioner. In furtherance of this power, the driver or any other person in charge of the goods vehicle could be stopped and the vehicle examined and the records inspected. If it was found that the goods are being carried in contravention of the provisions of the Act or theRules, the officer conducting the search could seize the goods found in the vehicle along with any container or materials used for packing. rule 64-A lay down the procedure for the registration of transport etc. For the non-compliance of the provisions of the Act and the Rules, punishments were provided. On behalf of the appellants it was contended that they were mainly transporters, carrying goods of the consignor to the consignee, and they were neither a dealer nor were they doing any business of sale or purchase of any goods and hence the obligations cast on them including punishment for the offences was beyond the legislative competence of the State Legislature under Entry 54 of the List II of the Second Schedule. While upholding the validity of the aforesaid provisions, this Court observed as follows :compliance of the provisions of the Act and the Rules, punishments were provided. On behalf of the appellants it was contended that they were mainly transporters, carrying goods of the consignor to the consignee, and they were neither a dealer nor were they doing any business of sale or purchase of any goods and hence the obligations cast on them including punishment for the compliance of the provisions of the Act and the Rules, punishments were provided. On behalf of the appellants it was contended that they were mainly transporters, carrying goods of the consignor to the consignee, and they were neither a dealer nor were they doing any business of sale or purchase of any goods and hence the obligations cast on them including punishment fortaxing statute has charging sections. It lays down the procedure to assess tax and penalties etc. It also provides provisions to cover pilferage of such revenue by providing such mechanism as it deems fit, in other words, to check evasion of tax and in doing so, if any obligation is cast on any person having connections with the consignor or consignee in relation to such goods, maybe other than a dealer, to perform such obligation in aid, to check evasion and in case he is made liable for any offence for his dereliction of duty or deliberate false act contrary to what he is obligated to do. In our opinion it cannot be constructed to be beyond the competence of the State Legislature. The impugned provisions are not charging sections, no tax liability is placed on the transporters. We find neither Sections 29, 30, 32 and 36-A nor Rules 46-A, 63-A and 64. A lack any legislative competence. They are within the legislative competence of the State and would fall under List II of Entry 54 of the Seventh Schedule of the Constitution of India.It also noticed the decisions of this Court in Sodhi Transport Companys case (supra)/. After referring to Sant Lals case (supra) it was held that the same was clearly distinguishable inasmuch as the provisions of the Haryana General Sales Tax Act were not similar to those which were impugned in the Tripura Associations case (supra). It appears to us that the scheme and the provisions under the Tripura Sales Tax Act and the Rules are similar to that contained in Section 37 of the Haryana Sales Tax Act as well as to Section 22-A of the Rajasthan Sales Tax Act, 1954 and Section 78 of the Rajasthan Sales Tax Act,m 1994.29. It is thus settled law that provisions to check evasion of tax are within the legislative competence of the States under Entry 54 of the list II. This being so, the provisions to make the imposition of tax efficacious or to prevent evasion of tax are within the legislative competence. Unlike the dalals and forwarding agents, as in Sant Lals case, the persons referred to in Section 78(2) are persons concerned with the movement of goods which are sold are likely to be sold. With there begin no valid challenge to Section 78(2) a provisions contained in sub-section (5) of Section 78 which provides for levy of penalty in case of non-compliance of Section 78(2) can only be regarded as consequential and valid. if there was legislative competence to enact Section 78(2) then the same power contained in Entry 54 of List II could enable the State Legislature to provide for consequence of non-compliance by incorporating sub-section (5) therein. Section 78(5) and Section 78(8) are part of an integral scheme and deal with two separate classes of people referred to in Section 78(2).30. Unlike Sant Lals case, hereunder Section 78(5) levy of penalty is only on the person in charge of the goods. it is he who should have all the requisite documents relating to the title or sale of the goods which are begin transported. Penalty under Section 78(5) is leviable under two circumstances. Firstly if there is non-compliance with Section 78(2)(a) i.e. not carrying the documents mentioned in that sub-clause or, secondly if false or forged documents or declaration is submitted. This sub-section cannot relate to personal belongings whcih are not meant for sale but would relate to those types of goods in respect of which documents referred to in Section 78(2)(a) exist or can exist.Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in sub-clause 2(a) are not produced, even though the same should exist, woudl clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar, 1964(1) SCR 897 at 910; "The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act.32. Following the decisions of this Court in cases of Sodhi Transport Co. and others (supra), Delite Carriers (supra), Indian Roadways Corporation (supra) Sarna Transport Corporation (supra) and Tripura Goods Transport Association (supra) we hold that the provisions of Section 78(5) of the Rajasthan Sales Tax Act, 1994 are valid and the impugned decision of the High Court in this regard is not correct.The aforesaid decision can be of little assistance because the provision of Section 78(5) are radically different from Section 42(3) of the Madras Act with which this Court was concerned in K.P. Abdullas case (supra). Section 78(5) does not contain any power of confiscation of goods and the levy of penalty is for carrying the goods or for submitting false or forged documents or declaration. The Madras Act, on the other hand contemplated seizure and confiscation of goods if they were transported without proper documentation.From the aforesaid decision in Delite Carriers case (supra) it is evident that he Court regarded Section 37 of the Haryana General Sales Tax as being nothing more than a provision which had been enacted in the sales tax law of a State which would facilitate inspection of goods carried from one State to another and would fall within the legislative ambit of Entry 54 of List II. The said Section 37 of the Haryana Act is in parim materia with Section 78 of the Rajasthan Act.21. The provisions of Sectionand 22B of the Rajasthan Sales Tax Act, 1954were the precursor to the present Section 78 of the 1994 ACt. The validity of Sectionand other connected provisions were impugned in Writ Petition Nos.of 1983 in M/s Indian Roadways Corporation and Another v. State of Rajasthan and Others.From the aforesaid decisions, it would be clear that the consistent view of this Court since the case of Sodhi Transport Companys case (supra) has been that provisions similar or Section 78(5) have been held to be within the legislative competence of the State. In fact, validity of Sectiond 22B of the Rajasthan Sales Tax Actwhich was specifically challenged in M/s Indian Roadways case (supra) and Sarna Transport case (supra) were upheld by this Court and the said provisions are in pari materia with the new Section 78 of the 1994 Act.It is for the aforesaid reasons that Section 38 was held to be beyond the purview of the State Legislature and was struck down. It will be seen that while the validity of Section 37 of the Haryana Sales Tax Act was upheld by the Court in Delite Carriers (supra), it is Section 38, dealing with dalal or clearing or forwarding agents being required to take out a licence, that the court held the section to be ultra vires primarily for the reason that the forwarding or clearing agent or dalal does not carry on the business of selling goods and does not have in the customary course of a business authority to sell goods belonging to the dealer whose goods he books or receives. Section 37 (upheld in Delite Carriers case which is similar to 78 here) and Section 38 of the Haryana Act operate differently. The two provisions are not identical and it is presumably for this reason that there is no reference to Delite Carriets cases decision in Sant Lals case.It is thus settled law that provisions to check evasion of tax are within the legislative competence of the States under Entry 54 of the list II. This being so, the provisions to make the imposition of tax efficacious or to prevent evasion of tax are within the legislative competence. Unlike the dalals and forwarding agents, as in Sant Lals case, the persons referred to in Section 78(2) are persons concerned with the movement of goods which are sold are likely to be sold. With there begin no valid challenge to Section 78(2) a provisions contained in(5) of Section 78 which provides for levy of penalty in case ofof Section 78(2) can only be regarded as consequential and valid. if there was legislative competence to enact Section 78(2) then the same power contained in Entry 54 of List II could enable the State Legislature to provide for consequence ofion (5) therein. Section 78(5) and Section 78(8) are part of an integral scheme and deal with two separate classes of people referred to in Section 78(2).30. Unlike Sant Lals case, hereunder Section 78(5) levy of penalty is only on the person in charge of the goods. it is he who should have all the requisite documents relating to the title or sale of the goods which are begin transported. Penalty under Section 78(5) is leviable under two circumstances. Firstly if there iswith Section 78(2)(a) i.e. not carrying the documents mentioned in thator, secondly if false or forged documents or declaration is submitted. Thiscannot relate to personal belongings whcih are not meant for sale but would relate to those types of goods in respect of which documents referred to in Section 78(2)(a) exist or can exist.h submission of false or forged documents or declaration at theor even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in2(a) are not produced, even though the same should exist, woudl clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar, 1964(1) SCR 897 at 910; "The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act. | 1 | 11,615 | 3,266 | ### Instruction:
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such mechanism as it deems fit, in other words, to check evasion of tax and in doing so, if any obligation is cast on any person having connections with the consignor or consignee in relation to such goods, maybe other than a dealer, to perform such obligation in aid, to check evasion and in case he is made liable for any offence for his dereliction of duty or deliberate false act contrary to what he is obligated to do. In our opinion it cannot be constructed to be beyond the competence of the State Legislature. The impugned provisions are not charging sections, no tax liability is placed on the transporters. We find neither Sections 29, 30, 32 and 36-A nor Rules 46-A, 63-A and 64. A lack any legislative competence. They are within the legislative competence of the State and would fall under List II of Entry 54 of the Seventh Schedule of the Constitution of India." 28. It also noticed the decisions of this Court in Sodhi Transport Companys case (supra)/. After referring to Sant Lals case (supra) it was held that the same was clearly distinguishable inasmuch as the provisions of the Haryana General Sales Tax Act were not similar to those which were impugned in the Tripura Associations case (supra). It appears to us that the scheme and the provisions under the Tripura Sales Tax Act and the Rules are similar to that contained in Section 37 of the Haryana Sales Tax Act as well as to Section 22-A of the Rajasthan Sales Tax Act, 1954 and Section 78 of the Rajasthan Sales Tax Act,m 1994.29. It is thus settled law that provisions to check evasion of tax are within the legislative competence of the States under Entry 54 of the list II. This being so, the provisions to make the imposition of tax efficacious or to prevent evasion of tax are within the legislative competence. Unlike the dalals and forwarding agents, as in Sant Lals case, the persons referred to in Section 78(2) are persons concerned with the movement of goods which are sold are likely to be sold. With there begin no valid challenge to Section 78(2) a provisions contained in sub-section (5) of Section 78 which provides for levy of penalty in case of non-compliance of Section 78(2) can only be regarded as consequential and valid. if there was legislative competence to enact Section 78(2) then the same power contained in Entry 54 of List II could enable the State Legislature to provide for consequence of non-compliance by incorporating sub-section (5) therein. Section 78(5) and Section 78(8) are part of an integral scheme and deal with two separate classes of people referred to in Section 78(2).30. Unlike Sant Lals case, hereunder Section 78(5) levy of penalty is only on the person in charge of the goods. it is he who should have all the requisite documents relating to the title or sale of the goods which are begin transported. Penalty under Section 78(5) is leviable under two circumstances. Firstly if there is non-compliance with Section 78(2)(a) i.e. not carrying the documents mentioned in that sub-clause or, secondly if false or forged documents or declaration is submitted. This sub-section cannot relate to personal belongings whcih are not meant for sale but would relate to those types of goods in respect of which documents referred to in Section 78(2)(a) exist or can exist. 30. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in sub-clause 2(a) are not produced, even though the same should exist, woudl clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar, 1964(1) SCR 897 at 910; "The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act.
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validity of Sectionand other connected provisions were impugned in Writ Petition Nos.of 1983 in M/s Indian Roadways Corporation and Another v. State of Rajasthan and Others.From the aforesaid decisions, it would be clear that the consistent view of this Court since the case of Sodhi Transport Companys case (supra) has been that provisions similar or Section 78(5) have been held to be within the legislative competence of the State. In fact, validity of Sectiond 22B of the Rajasthan Sales Tax Actwhich was specifically challenged in M/s Indian Roadways case (supra) and Sarna Transport case (supra) were upheld by this Court and the said provisions are in pari materia with the new Section 78 of the 1994 Act.It is for the aforesaid reasons that Section 38 was held to be beyond the purview of the State Legislature and was struck down. It will be seen that while the validity of Section 37 of the Haryana Sales Tax Act was upheld by the Court in Delite Carriers (supra), it is Section 38, dealing with dalal or clearing or forwarding agents being required to take out a licence, that the court held the section to be ultra vires primarily for the reason that the forwarding or clearing agent or dalal does not carry on the business of selling goods and does not have in the customary course of a business authority to sell goods belonging to the dealer whose goods he books or receives. Section 37 (upheld in Delite Carriers case which is similar to 78 here) and Section 38 of the Haryana Act operate differently. The two provisions are not identical and it is presumably for this reason that there is no reference to Delite Carriets cases decision in Sant Lals case.It is thus settled law that provisions to check evasion of tax are within the legislative competence of the States under Entry 54 of the list II. This being so, the provisions to make the imposition of tax efficacious or to prevent evasion of tax are within the legislative competence. Unlike the dalals and forwarding agents, as in Sant Lals case, the persons referred to in Section 78(2) are persons concerned with the movement of goods which are sold are likely to be sold. With there begin no valid challenge to Section 78(2) a provisions contained in(5) of Section 78 which provides for levy of penalty in case ofof Section 78(2) can only be regarded as consequential and valid. if there was legislative competence to enact Section 78(2) then the same power contained in Entry 54 of List II could enable the State Legislature to provide for consequence ofion (5) therein. Section 78(5) and Section 78(8) are part of an integral scheme and deal with two separate classes of people referred to in Section 78(2).30. Unlike Sant Lals case, hereunder Section 78(5) levy of penalty is only on the person in charge of the goods. it is he who should have all the requisite documents relating to the title or sale of the goods which are begin transported. Penalty under Section 78(5) is leviable under two circumstances. Firstly if there iswith Section 78(2)(a) i.e. not carrying the documents mentioned in thator, secondly if false or forged documents or declaration is submitted. Thiscannot relate to personal belongings whcih are not meant for sale but would relate to those types of goods in respect of which documents referred to in Section 78(2)(a) exist or can exist.h submission of false or forged documents or declaration at theor even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in2(a) are not produced, even though the same should exist, woudl clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar, 1964(1) SCR 897 at 910; "The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act.
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State of Bombay Vs. Bombay Education Society and Others | second case both the provisions were declared invalid. The learned Attorney-General informed us that in 29 States in U.S.A. Legislating had made compulsory provision for English as the medium of instruction. Those statutes do not appear to have been tested in court and the Attorney-General cannot therefore, derive much comfort from the fact that 29 States have by legislation adopted English as the medium of instruction.The learned Attorney-General also relies on the case of - Ottawa Separate Schools Trustees v. Mackell, 1917 AC 62 (M). That case does not help him either, because in that case the schools were classified as denominational purely on the ground of religion. They were not classified according to race or language. It was contended that the kind of school that the trustees were authorised to provide, was the school where education was to be given in such language as the trustees thought fit. Their Lordships of the Judicial Committee rejected this contention with the following observations:"Their Lordships are unable to agree with this view. The "kind" of school referred to in sub-s. 8 of S. 79 is, in their opinion, the grade or character of school, for example, "a girls school", "a boys school", or "an infants School" and a "kind" of school, within the meaning of that sub-section, is not a school where any special language is in common use."Where, however a minority like the Anglo-Indian Community, which is based, inter-alia, on religion and language, has the fundamental right to conserve its language, script and culture under Article 29 (1) and has the right to establish and administer educational institutions of their choice under Article 30 (1),surely then there must be implicit in such fundamental right, to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30 (1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it.18. We now pass on to Article 337 which is in Part XVI under the heading "Special Provisions relating to certain classes". Article 337 secures to the Anglo-Indian Community certain special grants made by the Union and by each State in respect of education. The second paragraph of that Article provides for progressive diminution of such grant until such special grant ceases at the end of ten years from the commencement of the Constitution as mentioned in the first proviso to that Article. The second proviso runs as follows :"Provided further that no educational institution shall be entitled to receive any grant under this Article unless at least forty percent, of the annual admissions therein are made available to members of communities other than the Anglo-Indian community."It is clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo-Indian Community, as a condition of such special grant, the duty that at least 10 per cent, of the annual admission therein must be made available to members of communities other than the Anglo-Indian Community. This is undoubtedly a constitutional obligation. In so far as clause 5 of the impugned order enjoins that no primary or secondary school shall from the date of this order admit to a class where English issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian including Barnes High School from performing their Constitutional obligations and exposes them to the risk of losing the special grant.The learned Attorney-General refers to clause 7 the impugned order and suggests that the authorities of Anglo-Indian Schools may still discharge their constitutional obligations by following the advice given to them in that concluding clause. The proviso to Article 337 does not impose any obligation on the Anglo-Indian Community as a condition for receipt of the special grant other than that at least 40 per cent, of the annual admissions should be made available to non-Anglo-Indian pupils. The advice, tendered by the State to the Anglo-Indian Schools by clause 7 of the impugned order will, if the same be followed necessarily imposed an additional burden on the Anglo-Indian Schools to which they are not subjected by the Constitution itself.The covering circular No. SSN 2054 (b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among Anglo-Indian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to be treated as operative, in the sense that a non-compliance with it will entail loss of the whole or part of this grant as a result of the change in the existing procedure for the equitable distribution, then it undoubtedly adds to Article 337 of the Constitution a further condition for the receipt by Anglo-Indian Schools of the special grant secured to them by that Article. On the other hand if clause7 is to be treated merely as advice, which may or may not be accepted or acted upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under Article 337 and thereby forfeit their Constitutional right to the special grants. In either view of the matter the impugned order cannot but be regarded as unconstitutional. In our opinion the second question raised in these appeals must also, view of Article 337, be answered against the State. | 0[ds]There is good deal of force, therefore, in the argument that the order restricts admission only to Anglo-Indians and citizens of non-Asiatic descent whose language is English. This interpretation find support from the decision mentioned in clause 4 to withdraw all special and interim concessions in respect of admission to Schools referred to inFacilities to linguistic minorities provided for in the circular order, therefore, may be read as contemplating facilitates to be given only to the Anglo-Indians and citizens of non-Asiatic descent.Assuming, however, thatunder the impugned order a section of citizens, other than Anglo-Indians and citizens of non-Asiatic descent, whose language is English, may also get admission, even then citizens whose language is not English are certainly debarred by the order from admission to a School where English is used as a medium of instruction in all the classes. Article 29 (2) ex facie puts no limitation or qualification on the expression "citizen". Therefore, the constructions sought to be put upon clause 5 does not apparently help the learned Attorney-General, for even on that construction the order will contravene the provisions of Article 29from this, the contention appears to us to be devoid of merit. Article 29 (1) gives protection to any section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same.Article 30 (1) secures to all minorities, whether based on religion or language, the right to establish and administer education institutions of their choice. Now suppose the State maintains an educational institution to help conserving the distinct language script or culture of a section of the citizens or makes grants in aid of an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture, who can claim the protection of Article 29(2) in the matter of admission into any such institution?Surely the citizens of the very section whose language script or culture is sought to be conserved by the institution or citizen who belong to the very minority group which has established and is administering the institution, do not need any protection against themselves and therefore Article 29(2) is not designed for the protection of this section or this minority. Nor do we see any reason to limit Article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in Article 29(1) to Article 30 (1), for the citizens, who do not belong to any minority group, may quite conceivably need this protection just as much as the citizens of such other minoritylanguage of Article 29(2) is wide and unqualified and any well cover all citizens whether belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29 (2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29 (2) is a protection against a particular species of wrong namely denial of admission to educational institutions of specific kind.In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) conferred a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination.The heading under which Article 29 and 30 are grouped together-namely "Cultural and Educational Rights"--- is quite general and does not in terms contemplate such differentiation. In the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of their fundamentalthat is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School where the medium of instruction is English. Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adopting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground ofthe powers of the State in this behalf cannot be lightly questioned and certainly not in so far as their exercise is not inconsistent with or contrary to the fundamental rights guaranteed to thehowever a minority like the Anglo-Indian Community, which is based, inter-alia, on religion and language, has the fundamental right to conserve its language, script and culture under Article 29 (1) and has the right to establish and administer educational institutions of their choice under Article 30 (1),surely then there must be implicit in such fundamental right, to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30 (1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter tois clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo-Indian Community, as a condition of such special grant, the duty that at least 10 per cent, of the annual admission therein must be made available to members of communities other than the Anglo-Indian Community. This is undoubtedly a constitutional obligation. In so far as clause 5 of the impugned order enjoins that no primary or secondary school shall from the date of this order admit to a class where English issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian including Barnes High School from performing their Constitutional obligations and exposes them to the risk of losing the special grant.Thecovering circular No. SSN 2054 (b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among Anglo-Indian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to be treated as operative, in the sense that a non-compliance with it will entail loss of the whole or part of this grant as a result of the change in the existing procedure for the equitable distribution, then it undoubtedly adds to Article 337 of the Constitution a further condition for the receipt by Anglo-Indian Schools of the special grant secured to them by that Article. On the other hand if clause7 is to be treated merely as advice, which may or may not be accepted or acted upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under Article 337 and thereby forfeit their Constitutional right to the special grants. In either view of the matter the impugned order cannot but be regarded as unconstitutional. In our opinion the second question raised in these appeals must also, view of Article 337, be answered against the State. | 0 | 6,824 | 1,512 | ### 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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second case both the provisions were declared invalid. The learned Attorney-General informed us that in 29 States in U.S.A. Legislating had made compulsory provision for English as the medium of instruction. Those statutes do not appear to have been tested in court and the Attorney-General cannot therefore, derive much comfort from the fact that 29 States have by legislation adopted English as the medium of instruction.The learned Attorney-General also relies on the case of - Ottawa Separate Schools Trustees v. Mackell, 1917 AC 62 (M). That case does not help him either, because in that case the schools were classified as denominational purely on the ground of religion. They were not classified according to race or language. It was contended that the kind of school that the trustees were authorised to provide, was the school where education was to be given in such language as the trustees thought fit. Their Lordships of the Judicial Committee rejected this contention with the following observations:"Their Lordships are unable to agree with this view. The "kind" of school referred to in sub-s. 8 of S. 79 is, in their opinion, the grade or character of school, for example, "a girls school", "a boys school", or "an infants School" and a "kind" of school, within the meaning of that sub-section, is not a school where any special language is in common use."Where, however a minority like the Anglo-Indian Community, which is based, inter-alia, on religion and language, has the fundamental right to conserve its language, script and culture under Article 29 (1) and has the right to establish and administer educational institutions of their choice under Article 30 (1),surely then there must be implicit in such fundamental right, to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30 (1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it.18. We now pass on to Article 337 which is in Part XVI under the heading "Special Provisions relating to certain classes". Article 337 secures to the Anglo-Indian Community certain special grants made by the Union and by each State in respect of education. The second paragraph of that Article provides for progressive diminution of such grant until such special grant ceases at the end of ten years from the commencement of the Constitution as mentioned in the first proviso to that Article. The second proviso runs as follows :"Provided further that no educational institution shall be entitled to receive any grant under this Article unless at least forty percent, of the annual admissions therein are made available to members of communities other than the Anglo-Indian community."It is clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo-Indian Community, as a condition of such special grant, the duty that at least 10 per cent, of the annual admission therein must be made available to members of communities other than the Anglo-Indian Community. This is undoubtedly a constitutional obligation. In so far as clause 5 of the impugned order enjoins that no primary or secondary school shall from the date of this order admit to a class where English issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian including Barnes High School from performing their Constitutional obligations and exposes them to the risk of losing the special grant.The learned Attorney-General refers to clause 7 the impugned order and suggests that the authorities of Anglo-Indian Schools may still discharge their constitutional obligations by following the advice given to them in that concluding clause. The proviso to Article 337 does not impose any obligation on the Anglo-Indian Community as a condition for receipt of the special grant other than that at least 40 per cent, of the annual admissions should be made available to non-Anglo-Indian pupils. The advice, tendered by the State to the Anglo-Indian Schools by clause 7 of the impugned order will, if the same be followed necessarily imposed an additional burden on the Anglo-Indian Schools to which they are not subjected by the Constitution itself.The covering circular No. SSN 2054 (b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among Anglo-Indian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to be treated as operative, in the sense that a non-compliance with it will entail loss of the whole or part of this grant as a result of the change in the existing procedure for the equitable distribution, then it undoubtedly adds to Article 337 of the Constitution a further condition for the receipt by Anglo-Indian Schools of the special grant secured to them by that Article. On the other hand if clause7 is to be treated merely as advice, which may or may not be accepted or acted upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under Article 337 and thereby forfeit their Constitutional right to the special grants. In either view of the matter the impugned order cannot but be regarded as unconstitutional. In our opinion the second question raised in these appeals must also, view of Article 337, be answered against the State.
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0
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we see any reason to limit Article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in Article 29(1) to Article 30 (1), for the citizens, who do not belong to any minority group, may quite conceivably need this protection just as much as the citizens of such other minoritylanguage of Article 29(2) is wide and unqualified and any well cover all citizens whether belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29 (2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29 (2) is a protection against a particular species of wrong namely denial of admission to educational institutions of specific kind.In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) conferred a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination.The heading under which Article 29 and 30 are grouped together-namely "Cultural and Educational Rights"--- is quite general and does not in terms contemplate such differentiation. In the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of their fundamentalthat is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School where the medium of instruction is English. Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adopting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground ofthe powers of the State in this behalf cannot be lightly questioned and certainly not in so far as their exercise is not inconsistent with or contrary to the fundamental rights guaranteed to thehowever a minority like the Anglo-Indian Community, which is based, inter-alia, on religion and language, has the fundamental right to conserve its language, script and culture under Article 29 (1) and has the right to establish and administer educational institutions of their choice under Article 30 (1),surely then there must be implicit in such fundamental right, to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30 (1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter tois clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo-Indian Community, as a condition of such special grant, the duty that at least 10 per cent, of the annual admission therein must be made available to members of communities other than the Anglo-Indian Community. This is undoubtedly a constitutional obligation. In so far as clause 5 of the impugned order enjoins that no primary or secondary school shall from the date of this order admit to a class where English issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian including Barnes High School from performing their Constitutional obligations and exposes them to the risk of losing the special grant.Thecovering circular No. SSN 2054 (b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among Anglo-Indian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to be treated as operative, in the sense that a non-compliance with it will entail loss of the whole or part of this grant as a result of the change in the existing procedure for the equitable distribution, then it undoubtedly adds to Article 337 of the Constitution a further condition for the receipt by Anglo-Indian Schools of the special grant secured to them by that Article. On the other hand if clause7 is to be treated merely as advice, which may or may not be accepted or acted upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under Article 337 and thereby forfeit their Constitutional right to the special grants. In either view of the matter the impugned order cannot but be regarded as unconstitutional. In our opinion the second question raised in these appeals must also, view of Article 337, be answered against the State.
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The Aggarwal Chamber Of Vs. M/S Ganpat Rai Hira Lal | amount of income-tax payable on the amount of the respondents profits which in this case was deducted, retained and actually paid. This fact has not been challenged before us.The ground on which this liability is attacked is that the total world income of the respondent was not taxable and therefore, on the profits made on the Hapur transactions, the British Indian, Tax Authorities could not levy any tax. This contention disregards the provisions of and liability arising under Ss. 40 (2) and 42 (1) and the proviso thereto. It also is contrary to the principle of taxing statutes that the profits are "taxed where they are found". In this case they were in the hands of the Hapur firm which was in receipt and control of the income. The agent at Hapur, having lawfully and properly paid the tax under the Act that amount has been rightly deducted from the profits accruing on the Hapur transactions.13. The Judgment of the Judicial Committee of the Ijlas-i-khas on which the High Court has based its decision suffers from the infirmity that it ignores both the provisions of and principle underlying Ss. 40 (2) and 42 (1) of the Act and the proviso thereto relating to the liability of an agent under the Act and the law of Agency relating to employing of sub-agents by agents.If the Hapur firm rightly paid the tax on the profits, the respondent cannot be allowed to challenge the amount on the ground that his total world income was not taxable and he was entitled to his profits without deductions. This is a question which has to be agitated by the non-resident assessee at the time of his assessment. Those persons who are bound under the Act to make deduction at the time of payment of any income profits or gains are not concerned with the ultimate result of the assessment.The scheme of the Act is that deductions are required to be made out of "salaries", "interest on securities" and other heads of "income. Profits and gains" and adjustments are made finally at the time of assessment. Whether in the ultimate result the amount of tax deducted or any lesser or bigger amount would be payable as income-tax in accordance with the law in force would not affect the rights, liabilities and powers of a person under S. 18 or of the agent under Ss. 40 (2) and 42 (1). As to what would be the effect and result of application of S. 17 if and when any appropriate proceedings are taken is not a matter which arises in this appeal between the appellant and the respondent nor can that matter be adjudicated upon in these proceedings. That is a matter which would be entirely between the respondent and the Income-tax Authorities seized of the assessment.14. Our attention was drawn to two cases (1) Commissioner of Income-tax v. Currimbhoy Ebrahim and Sons, 1935-3 ITR 395 : (AIR 1936 PC 1 ) (F). In that case the assessee company had been treated as an agent of the Nizam of Hyderabad who had lent to the assessee company a sum of Rs. 50 lakhs. The assessee company had paid in the assessment year a sum of Rs. 3 lakhs on account of interest and it was held that the interest earned by the Nizam through or from any business connection with the assessee company in British India or from any property within British India and therefore S. 42 was not applicable. No question of "business connection" was raised in the Court below and the argument there proceeded on the basis that the respondent was not liable for this amount on account of income-tax because the "entire in-income" was not assessable to income-tax. The argument of isolated transactions based on the Anglo-French Textile Co. Ltd. v. Commissioner of Income-tax, Madras, 1953 SCR 454: (AIR 1953 SC 105 ) (G), is not available to the respondent nor was the foundation for any such argument laid in the Courts below or raised in the statement of the case filed by the respondent in this Court. Another case on which reliance was placed is Greenwood v. F. L. Smidth and co., 1922-1 AC 417 (H). That was a case of a Danish firm resident in Copenhagan. It manufactured and dealt with cement making machinery which it exported to other countries. It had an office in London in charge of a qualified engineer who received enquires for machinery such as the firm could supply, sent to Denmark particulars of the work which the machinery was required to do and when the machinery was supplied he was available to give English purchaser the benefit of his experience in erecting it. The contracts between the firm and their customers were made in Copenhagan and the goods were shipped F. O. B. Copenhagan. It was held in that case that the firm did not exercise a trade within the United Kingdom within the meaning of Sch. D of Ss.2 of the Income-tax Act, 1853 and was therefore not assessable to income-tax. This decision is not relevant to the case now before us as the facts were different and the decision was under a different statute.15. In our opinion the Judicial Committee of Ijlas-i-khas was in error in holding that before fixing the liability of a contributory to tax paid by an agent in British India for and on behalf of the non-resident contributory, his liability to pay tax on his "entire income", really total world income, had to be established. Therefore the finding of the High Court that the Liquidator cannot claim from the respondent the amount of tax paid by the Hapur firm on transactions entered into by the appellant for and on behalf of the respondent unless it was shown that his total world income was taxable is unsustainable. As between the parties the tax paid by the agent had to be taken into account irrespective of the ultimate result of the assessment on the non-resident. | 1[ds]15. In our opinion the Judicial Committee of Ijlas-i-khas was in error in holding that before fixing the liability of a contributory to tax paid by an agent in British India for and on behalf of the non-resident contributory, his liability to pay tax on his "entire income", really total world income, had to be established. Therefore the finding of the High Court that the Liquidator cannot claim from the respondent the amount of tax paid by the Hapur firm on transactions entered into by the appellant for and on behalf of the respondent unless it was shown that his total world income was taxable is unsustainable. As between the parties the tax paid by the agent had to be taken into account irrespective of the ultimate result of the assessment on the non-resident. | 1 | 4,071 | 148 | ### Instruction:
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amount of income-tax payable on the amount of the respondents profits which in this case was deducted, retained and actually paid. This fact has not been challenged before us.The ground on which this liability is attacked is that the total world income of the respondent was not taxable and therefore, on the profits made on the Hapur transactions, the British Indian, Tax Authorities could not levy any tax. This contention disregards the provisions of and liability arising under Ss. 40 (2) and 42 (1) and the proviso thereto. It also is contrary to the principle of taxing statutes that the profits are "taxed where they are found". In this case they were in the hands of the Hapur firm which was in receipt and control of the income. The agent at Hapur, having lawfully and properly paid the tax under the Act that amount has been rightly deducted from the profits accruing on the Hapur transactions.13. The Judgment of the Judicial Committee of the Ijlas-i-khas on which the High Court has based its decision suffers from the infirmity that it ignores both the provisions of and principle underlying Ss. 40 (2) and 42 (1) of the Act and the proviso thereto relating to the liability of an agent under the Act and the law of Agency relating to employing of sub-agents by agents.If the Hapur firm rightly paid the tax on the profits, the respondent cannot be allowed to challenge the amount on the ground that his total world income was not taxable and he was entitled to his profits without deductions. This is a question which has to be agitated by the non-resident assessee at the time of his assessment. Those persons who are bound under the Act to make deduction at the time of payment of any income profits or gains are not concerned with the ultimate result of the assessment.The scheme of the Act is that deductions are required to be made out of "salaries", "interest on securities" and other heads of "income. Profits and gains" and adjustments are made finally at the time of assessment. Whether in the ultimate result the amount of tax deducted or any lesser or bigger amount would be payable as income-tax in accordance with the law in force would not affect the rights, liabilities and powers of a person under S. 18 or of the agent under Ss. 40 (2) and 42 (1). As to what would be the effect and result of application of S. 17 if and when any appropriate proceedings are taken is not a matter which arises in this appeal between the appellant and the respondent nor can that matter be adjudicated upon in these proceedings. That is a matter which would be entirely between the respondent and the Income-tax Authorities seized of the assessment.14. Our attention was drawn to two cases (1) Commissioner of Income-tax v. Currimbhoy Ebrahim and Sons, 1935-3 ITR 395 : (AIR 1936 PC 1 ) (F). In that case the assessee company had been treated as an agent of the Nizam of Hyderabad who had lent to the assessee company a sum of Rs. 50 lakhs. The assessee company had paid in the assessment year a sum of Rs. 3 lakhs on account of interest and it was held that the interest earned by the Nizam through or from any business connection with the assessee company in British India or from any property within British India and therefore S. 42 was not applicable. No question of "business connection" was raised in the Court below and the argument there proceeded on the basis that the respondent was not liable for this amount on account of income-tax because the "entire in-income" was not assessable to income-tax. The argument of isolated transactions based on the Anglo-French Textile Co. Ltd. v. Commissioner of Income-tax, Madras, 1953 SCR 454: (AIR 1953 SC 105 ) (G), is not available to the respondent nor was the foundation for any such argument laid in the Courts below or raised in the statement of the case filed by the respondent in this Court. Another case on which reliance was placed is Greenwood v. F. L. Smidth and co., 1922-1 AC 417 (H). That was a case of a Danish firm resident in Copenhagan. It manufactured and dealt with cement making machinery which it exported to other countries. It had an office in London in charge of a qualified engineer who received enquires for machinery such as the firm could supply, sent to Denmark particulars of the work which the machinery was required to do and when the machinery was supplied he was available to give English purchaser the benefit of his experience in erecting it. The contracts between the firm and their customers were made in Copenhagan and the goods were shipped F. O. B. Copenhagan. It was held in that case that the firm did not exercise a trade within the United Kingdom within the meaning of Sch. D of Ss.2 of the Income-tax Act, 1853 and was therefore not assessable to income-tax. This decision is not relevant to the case now before us as the facts were different and the decision was under a different statute.15. In our opinion the Judicial Committee of Ijlas-i-khas was in error in holding that before fixing the liability of a contributory to tax paid by an agent in British India for and on behalf of the non-resident contributory, his liability to pay tax on his "entire income", really total world income, had to be established. Therefore the finding of the High Court that the Liquidator cannot claim from the respondent the amount of tax paid by the Hapur firm on transactions entered into by the appellant for and on behalf of the respondent unless it was shown that his total world income was taxable is unsustainable. As between the parties the tax paid by the agent had to be taken into account irrespective of the ultimate result of the assessment on the non-resident.
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1
### Explanation:
15. In our opinion the Judicial Committee of Ijlas-i-khas was in error in holding that before fixing the liability of a contributory to tax paid by an agent in British India for and on behalf of the non-resident contributory, his liability to pay tax on his "entire income", really total world income, had to be established. Therefore the finding of the High Court that the Liquidator cannot claim from the respondent the amount of tax paid by the Hapur firm on transactions entered into by the appellant for and on behalf of the respondent unless it was shown that his total world income was taxable is unsustainable. As between the parties the tax paid by the agent had to be taken into account irrespective of the ultimate result of the assessment on the non-resident.
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Warsaliganj Sahkari Chini Mill Mazd.Unin Vs. State Of Bihar | Kurian Joseph, J. 1. Whether seasonal workers of the sugar factories stopped crushing years back would be entitled to retaining allowance, was the main issue agitated by the appellant-union before the High Court. It was held by the High Court that as there was no crushing in the sugar factories, the seasonal workers will not be entitled to retaining allowance. Aggrieved, the union has come up in appeal.2. At the time of hearing of the appeals, taking note of the intervening development of an Exit Settlement scheme/plan, learned Senior Counsel Shri Amarendra Sharan submits that at least for the purpose of working out the benefits under the said plan, the retaining allowance may be directed to be taken into account. 3. Heard the learned counsel appearing for the respondents also.4. It is seen from the additional affidavit dated 10.02.2015 that the seasonal workers attached to the sugar factories which have been closed down long back are actually made to retire only on attaining the age of 60 years. In one of the communications, it is stated that the company did not require their services after the age of 60 years. Thus, in the case of those seasonal workers who had been working in those sugar factories referred to in the appeals, though not actually provided with work after the closure of the factories, they have been retained till they attained the age of superannuation, apparently for some pensionery benefits which they are otherwise eligible. That being the position, it is only just, fair and reasonable that at least, notionally, the retaining allowance which would have been otherwise payable to them, had the factories been functional, be taken into account for the purpose of calculating their pensionery benefits or the benefits under the Exit Settlement scheme/plan. | 1[ds]4. It is seen from the additional affidavit dated 10.02.2015 that the seasonal workers attached to the sugar factories which have been closed down long back are actually made to retire only on attaining the age of 60 years. In one of the communications, it is stated that the company did not require their services after the age of 60 years. Thus, in the case of those seasonal workers who had been working in those sugar factories referred to in the appeals, though not actually provided with work after the closure of the factories, they have been retained till they attained the age of superannuation, apparently for some pensionery benefits which they are otherwise eligible. That being the position, it is only just, fair and reasonable that at least, notionally, the retaining allowance which would have been otherwise payable to them, had the factories been functional, be taken into account for the purpose of calculating their pensionery benefits or the benefits under the Exit Settlement scheme/plan. | 1 | 325 | 186 | ### Instruction:
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Kurian Joseph, J. 1. Whether seasonal workers of the sugar factories stopped crushing years back would be entitled to retaining allowance, was the main issue agitated by the appellant-union before the High Court. It was held by the High Court that as there was no crushing in the sugar factories, the seasonal workers will not be entitled to retaining allowance. Aggrieved, the union has come up in appeal.2. At the time of hearing of the appeals, taking note of the intervening development of an Exit Settlement scheme/plan, learned Senior Counsel Shri Amarendra Sharan submits that at least for the purpose of working out the benefits under the said plan, the retaining allowance may be directed to be taken into account. 3. Heard the learned counsel appearing for the respondents also.4. It is seen from the additional affidavit dated 10.02.2015 that the seasonal workers attached to the sugar factories which have been closed down long back are actually made to retire only on attaining the age of 60 years. In one of the communications, it is stated that the company did not require their services after the age of 60 years. Thus, in the case of those seasonal workers who had been working in those sugar factories referred to in the appeals, though not actually provided with work after the closure of the factories, they have been retained till they attained the age of superannuation, apparently for some pensionery benefits which they are otherwise eligible. That being the position, it is only just, fair and reasonable that at least, notionally, the retaining allowance which would have been otherwise payable to them, had the factories been functional, be taken into account for the purpose of calculating their pensionery benefits or the benefits under the Exit Settlement scheme/plan.
### Response:
1
### Explanation:
4. It is seen from the additional affidavit dated 10.02.2015 that the seasonal workers attached to the sugar factories which have been closed down long back are actually made to retire only on attaining the age of 60 years. In one of the communications, it is stated that the company did not require their services after the age of 60 years. Thus, in the case of those seasonal workers who had been working in those sugar factories referred to in the appeals, though not actually provided with work after the closure of the factories, they have been retained till they attained the age of superannuation, apparently for some pensionery benefits which they are otherwise eligible. That being the position, it is only just, fair and reasonable that at least, notionally, the retaining allowance which would have been otherwise payable to them, had the factories been functional, be taken into account for the purpose of calculating their pensionery benefits or the benefits under the Exit Settlement scheme/plan.
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Poona Electric Supply Co. Ltd Vs. Commissioner Of Income-Tax, Bombay | any transaction and situation of this nature, the court would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language. 9. Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. In Mersey Docks and Harbour Board v. Lucas, (1883) 2 Tax Case 25 the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following years accounts, were "profits" within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the income-tax. In this case the surplus income formed the sinking fund and was utilized to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queens Bench Division in Paddington Burial Board v. Commrs. of Inland Revenue, (1884) 2 Tax Cas 48 was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young v. Racecourse. Betting Control Board, (1959) 38 Tax Cas 452 the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisator operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were not made for the purpose of the trade. This decision has no bearing on the question raised before us. 10. The said decisions lead to the following result: Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profit can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e, between the commercial profits and statutory profits. The latter are statutory fixed for a specified purpose. If we bear in mind these two principles there will be no difficulty in answering the question raised. 11. The appellant Company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes - one is for commercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the "Consumers Benefits Reserve Account". They were a part of the excess amount paid to it and reserved to be returned to the consumers. They did not form part of the assessees real profits. So, to arrive at the taxable income of the assessee from the business under S. 10(1) of the Act, the said amounts have to be deducted from its total income. 12. In this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under S. 10(2)(xv) of the Act. 13. The next question is whether the amounts so reserved for future payment were deductible in computing the income, profits or gains from the assessees business for the assessment years 1953-54 and 1954-55. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd. v. Commr. of Income-tax West Bengal, 1959-37 ITR 1 : (AIR 1959 SC 1165 ) that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was not contested on behalf of the Revenue. | 1[ds]9. Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. InMersey Docks and Harbour Board v. Lucas, (1883) 2 Tax Case 25the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following years accounts, were "profits" within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the income-tax. In this case the surplus income formed the sinking fund and was utilized to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queens Bench Division inPaddington Burial Board v. Commrs. of Inland Revenue, (1884) 2 Tax Cas 48was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young v. Racecourse. Betting Control Board, (1959) 38 Tax Cas 452 the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisator operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were not made for the purpose of the trade. This decision has no bearing on the question raised before us10. The said decisions lead to the following result: Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profit can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e, between the commercial profits and statutory profits. The latter are statutory fixed for a specified purpose. If we bear in mind these two principles there will be no difficulty in answering the question raised11. The appellant Company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes - one is for commercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the "Consumers Benefits Reserve Account". They were a part of the excess amount paid to it and reserved to be returned to the consumers. They did not form part of the assessees real profits. So, to arrive at the taxable income of the assessee from the business under S. 10(1) of the Act, the said amounts have to be deducted from its total income12. In this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under S. 10(2)(xv) of the Act13. The next question is whether the amounts so reserved for future payment were deductible in computing the income, profits or gains from the assessees business for the assessment years 1953-54 and. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd. v. Commr. of Income-tax West Bengal, 1959-37 ITR 1 : (AIR 1959 SC 1165 ) that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was not contested on behalf of the Revenue. | 1 | 4,726 | 1,032 | ### Instruction:
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any transaction and situation of this nature, the court would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language. 9. Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. In Mersey Docks and Harbour Board v. Lucas, (1883) 2 Tax Case 25 the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following years accounts, were "profits" within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the income-tax. In this case the surplus income formed the sinking fund and was utilized to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queens Bench Division in Paddington Burial Board v. Commrs. of Inland Revenue, (1884) 2 Tax Cas 48 was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young v. Racecourse. Betting Control Board, (1959) 38 Tax Cas 452 the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisator operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were not made for the purpose of the trade. This decision has no bearing on the question raised before us. 10. The said decisions lead to the following result: Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profit can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e, between the commercial profits and statutory profits. The latter are statutory fixed for a specified purpose. If we bear in mind these two principles there will be no difficulty in answering the question raised. 11. The appellant Company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes - one is for commercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the "Consumers Benefits Reserve Account". They were a part of the excess amount paid to it and reserved to be returned to the consumers. They did not form part of the assessees real profits. So, to arrive at the taxable income of the assessee from the business under S. 10(1) of the Act, the said amounts have to be deducted from its total income. 12. In this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under S. 10(2)(xv) of the Act. 13. The next question is whether the amounts so reserved for future payment were deductible in computing the income, profits or gains from the assessees business for the assessment years 1953-54 and 1954-55. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd. v. Commr. of Income-tax West Bengal, 1959-37 ITR 1 : (AIR 1959 SC 1165 ) that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was not contested on behalf of the Revenue.
### Response:
1
### Explanation:
9. Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. InMersey Docks and Harbour Board v. Lucas, (1883) 2 Tax Case 25the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following years accounts, were "profits" within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the income-tax. In this case the surplus income formed the sinking fund and was utilized to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queens Bench Division inPaddington Burial Board v. Commrs. of Inland Revenue, (1884) 2 Tax Cas 48was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young v. Racecourse. Betting Control Board, (1959) 38 Tax Cas 452 the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisator operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were not made for the purpose of the trade. This decision has no bearing on the question raised before us10. The said decisions lead to the following result: Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profit can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e, between the commercial profits and statutory profits. The latter are statutory fixed for a specified purpose. If we bear in mind these two principles there will be no difficulty in answering the question raised11. The appellant Company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes - one is for commercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the "Consumers Benefits Reserve Account". They were a part of the excess amount paid to it and reserved to be returned to the consumers. They did not form part of the assessees real profits. So, to arrive at the taxable income of the assessee from the business under S. 10(1) of the Act, the said amounts have to be deducted from its total income12. In this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under S. 10(2)(xv) of the Act13. The next question is whether the amounts so reserved for future payment were deductible in computing the income, profits or gains from the assessees business for the assessment years 1953-54 and. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd. v. Commr. of Income-tax West Bengal, 1959-37 ITR 1 : (AIR 1959 SC 1165 ) that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was not contested on behalf of the Revenue.
|
Brij Bihari Singh Vs. Bihar State Financial Corporation & Ors.(R-1,4,7) | given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” 10. In the instant case, the disciplinary proceeding was conducted in gross violation of Regulation 39 of the said Regulations inasmuch as no reasonable opportunity was given to the delinquent to place his case in defence. The Regulation imposed a duty on the Authority to give a personal hearing to the delinquent.11. A right of appeal has been provided by Regulation 40 of the said Regulations against any order passed by the competent Authority. In the instant case as noticed above, the Disciplinary Authority, instead of exercising the power as Disciplinary Authority imposing punishment, referred his recommendations to the appellate authority, namely, Board of Directors for taking a decision and the Board of Directors exercised the power of Disciplinary Authority and imposed punishment of dismissal thereby deprived the appellant from moving the appellate authority against the said order. Such exercise of power is wholly arbitrary and discriminatory.12. Curiously enough, the Managing Director being the disciplinary authority prepared his report and referred the matter to the Board of Directors to consider the draft charges, enquiry report, representation filed by the officer concerned and his finding, for taking an appropriate decision in the case. Not only that, when the case was placed before the Board for taking a final decision, he participated in the said meeting and a decision was taken by the Board of Directors to dismiss the appellant from service. In our considered opinion, such a procedure adopted by the disciplinary authority and the appellate authority is absolutely erroneous in law. 13. In the case of Surjit Ghosh vs. United Commercial Bank, AIR 1995 SC 1053 , this Court in similar circumstances, observed:- “5. ……..It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted. The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside.” 14. In Amar Nath Chowdhury vs. Braithwaite and Company Ltd. and Ors., (2002) 2 SCC 290 , a similar case came for consideration before this Court. In that case, the appellant who was an employee of Braithwaite and Company Ltd., a Government of India undertaking, was subjected to disciplinary proceedings. The enquiry committee submitted its report to the disciplinary authority who was the Chairman-cum-Managing Director of the Company. The disciplinary authority passed an order of removal of the appellant from service. The appellant moved the Board of Directors who was the appellate authority. When the appeal was taken up by the Board, the said Chairman-cum-Managing Director participated in the deliberation of the meeting of the Board which heard and dismissed the appeal. On these facts, this Court held that the proceeding of the Board was vitiated on account of participation of the disciplinary authority while deciding the appeal preferred by the appellant. Similar view has been taken in the case of Institute of Chartered Accountants of India vs. L.K. Ratna and Ors., (1986) 4 SCC 537. 15. In the case of K. Chelliah vs. Chairman Industrial Finance Corporation of India and Anr., AIR 1973 Mad. 122 , an employee of the IFCI was dismissed from service. The decision to terminate the employee was taken up by the Chairman who was also a Member of the Board which considered the appeal. The High Court held that the entire proceeding was vitiated by non-observance of principles of natural justice. 16. After giving our anxious consideration in the matter, we are of the definite view that the procedure adopted by the respondents in removing the appellant from service is erroneous and suffers from serious discrimination and bias. Further, the Enquiry Officer conducted the enquiry without following the procedure and without giving sufficient opportunity to the delinquent to place his case. Enquiry is also vitiated in law. | 1[ds]10. In the instant case, the disciplinary proceeding was conducted in gross violation of Regulation 39 of the said Regulations inasmuch as no reasonable opportunity was given to the delinquent to place his case in defence. The Regulation imposed a duty on the Authority to give a personal hearing to the delinquent.11. A right of appeal has been provided by Regulation 40 of the said Regulations against any order passed by the competent Authority. In the instant case as noticed above, the Disciplinary Authority, instead of exercising the power as Disciplinary Authority imposing punishment, referred his recommendations to the appellate authority, namely, Board of Directors for taking a decision and the Board of Directors exercised the power of Disciplinary Authority and imposed punishment of dismissal thereby deprived the appellant from moving the appellate authority against the said order. Such exercise of power is wholly arbitrary and discriminatory.12. Curiously enough, the Managing Director being the disciplinary authority prepared his report and referred the matter to the Board of Directors to consider the draft charges, enquiry report, representation filed by the officer concerned and his finding, for taking an appropriate decision in the case. Not only that, when the case was placed before the Board for taking a final decision, he participated in the said meeting and a decision was taken by the Board of Directors to dismiss the appellant from service. In our considered opinion, such a procedure adopted by the disciplinary authority and the appellate authority is absolutely erroneous in law.After giving our anxious consideration in the matter, we are of the definite view that the procedure adopted by the respondents in removing the appellant from service is erroneous and suffers from serious discrimination and bias. Further, the Enquiry Officer conducted the enquiry without following the procedure and without giving sufficient opportunity to the delinquent to place his case. Enquiry is also vitiated in law. | 1 | 3,188 | 345 | ### 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:
given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” 10. In the instant case, the disciplinary proceeding was conducted in gross violation of Regulation 39 of the said Regulations inasmuch as no reasonable opportunity was given to the delinquent to place his case in defence. The Regulation imposed a duty on the Authority to give a personal hearing to the delinquent.11. A right of appeal has been provided by Regulation 40 of the said Regulations against any order passed by the competent Authority. In the instant case as noticed above, the Disciplinary Authority, instead of exercising the power as Disciplinary Authority imposing punishment, referred his recommendations to the appellate authority, namely, Board of Directors for taking a decision and the Board of Directors exercised the power of Disciplinary Authority and imposed punishment of dismissal thereby deprived the appellant from moving the appellate authority against the said order. Such exercise of power is wholly arbitrary and discriminatory.12. Curiously enough, the Managing Director being the disciplinary authority prepared his report and referred the matter to the Board of Directors to consider the draft charges, enquiry report, representation filed by the officer concerned and his finding, for taking an appropriate decision in the case. Not only that, when the case was placed before the Board for taking a final decision, he participated in the said meeting and a decision was taken by the Board of Directors to dismiss the appellant from service. In our considered opinion, such a procedure adopted by the disciplinary authority and the appellate authority is absolutely erroneous in law. 13. In the case of Surjit Ghosh vs. United Commercial Bank, AIR 1995 SC 1053 , this Court in similar circumstances, observed:- “5. ……..It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted. The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside.” 14. In Amar Nath Chowdhury vs. Braithwaite and Company Ltd. and Ors., (2002) 2 SCC 290 , a similar case came for consideration before this Court. In that case, the appellant who was an employee of Braithwaite and Company Ltd., a Government of India undertaking, was subjected to disciplinary proceedings. The enquiry committee submitted its report to the disciplinary authority who was the Chairman-cum-Managing Director of the Company. The disciplinary authority passed an order of removal of the appellant from service. The appellant moved the Board of Directors who was the appellate authority. When the appeal was taken up by the Board, the said Chairman-cum-Managing Director participated in the deliberation of the meeting of the Board which heard and dismissed the appeal. On these facts, this Court held that the proceeding of the Board was vitiated on account of participation of the disciplinary authority while deciding the appeal preferred by the appellant. Similar view has been taken in the case of Institute of Chartered Accountants of India vs. L.K. Ratna and Ors., (1986) 4 SCC 537. 15. In the case of K. Chelliah vs. Chairman Industrial Finance Corporation of India and Anr., AIR 1973 Mad. 122 , an employee of the IFCI was dismissed from service. The decision to terminate the employee was taken up by the Chairman who was also a Member of the Board which considered the appeal. The High Court held that the entire proceeding was vitiated by non-observance of principles of natural justice. 16. After giving our anxious consideration in the matter, we are of the definite view that the procedure adopted by the respondents in removing the appellant from service is erroneous and suffers from serious discrimination and bias. Further, the Enquiry Officer conducted the enquiry without following the procedure and without giving sufficient opportunity to the delinquent to place his case. Enquiry is also vitiated in law.
### Response:
1
### Explanation:
10. In the instant case, the disciplinary proceeding was conducted in gross violation of Regulation 39 of the said Regulations inasmuch as no reasonable opportunity was given to the delinquent to place his case in defence. The Regulation imposed a duty on the Authority to give a personal hearing to the delinquent.11. A right of appeal has been provided by Regulation 40 of the said Regulations against any order passed by the competent Authority. In the instant case as noticed above, the Disciplinary Authority, instead of exercising the power as Disciplinary Authority imposing punishment, referred his recommendations to the appellate authority, namely, Board of Directors for taking a decision and the Board of Directors exercised the power of Disciplinary Authority and imposed punishment of dismissal thereby deprived the appellant from moving the appellate authority against the said order. Such exercise of power is wholly arbitrary and discriminatory.12. Curiously enough, the Managing Director being the disciplinary authority prepared his report and referred the matter to the Board of Directors to consider the draft charges, enquiry report, representation filed by the officer concerned and his finding, for taking an appropriate decision in the case. Not only that, when the case was placed before the Board for taking a final decision, he participated in the said meeting and a decision was taken by the Board of Directors to dismiss the appellant from service. In our considered opinion, such a procedure adopted by the disciplinary authority and the appellate authority is absolutely erroneous in law.After giving our anxious consideration in the matter, we are of the definite view that the procedure adopted by the respondents in removing the appellant from service is erroneous and suffers from serious discrimination and bias. Further, the Enquiry Officer conducted the enquiry without following the procedure and without giving sufficient opportunity to the delinquent to place his case. Enquiry is also vitiated in law.
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Commissioner of Income Tax Vs. Tranvancore Titanium Products Ltd | of providing for depreciation, renewals or diminution in value of assets, or retained by way of providing for any known liability of which the amount cannot be determined with substantial accuracy;(b) the expression `reserve shall not, subject as aforesaid, include any amount written off or retained by way of providing for depreciation, renewals or diminution in value of assets or retained by the way of providing for any known liability....and in this sub-clause the expression `liability shall include all liability in respect of expenditure contracted for an all disputed or contingent liabilities.(2) Where -(a) any amount written off or retained by way of providing for depreciation renewals or diminution in value of assets, not being an amount written off in relation to fixed assets before the commencement of this Act; or(b) any amount retained by way or providing for any known liability; is in excess of the amount which in the opinion of the directions, is reasonably necessary for the purpose, the excess shall be treated for the purposes of this Schedule as a `reserve and not a `provision.On a plain reading of cl. 7(1)(a) and (b) and cl. 7(2) above it will appear clear that though the term "provision" is defined positively by specifying what it means the definition of "reserve" is negative in form and not exhaustive in the sense that it only specific certain amounts which are not to be included in the term "reserve". In other words the effect of reading the two definitions together is that if any retention or appropriation of a sum falls within the definition of "provision" it can never be a reserve but it does not follow that if the retention or appropriation is not a provision it is automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purpose for which such retention or appropriation has been made because the substances of the mater is to be regarded and in this context the primary dictionary meaning of the term "reserve" may have to be availed of. But it is clear beyond doubt that if any retention or appropriation of a sum is not a provision, that is to say, if it is not designated to meet depreciation, renewals or diminution in value of assets or any known liability the same is not necessarily a reserve. We are emphasising this aspect of the matter because during the hearing almost all counsel for the assesses strenuously contended before us that once it was shown or became clear that the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a reserve. The fallacy underlying the contention becomes apparent if the negative and non-exhaustive aspects of the definition of reserve are borne in mind. Having regard to the type of definitions of the two concepts which are to be found in cl. 7 of Pt. III the proper approach in our view would be first to ascertain whether the particular retention or appropriation of a sum falls within the expression "provision" and if it does then clearly the concerned sum will have to be excluded from the computation of capital, nut in case the retention or appropriation of the sum is not a provision as defined, the question will have to be decided by reference to the true nature and character of the sum so retained or appropriated having regard to several factors as mentioned above and if the concerned sum is in fact a reserve then it will be taken into account for the computation of capital."5. In view of the aforestated legal position, the aspects taken into consideration by the tribunal and affirmed by the High Court that there was no stipulation by the Government for creation of loan redemption reserve; that the assessee had not kept to the schedule for repayment; that the assessee, on its own violation, had created a loan redemption reserve by making appropriation of profit of Rs. 10 lakhs each year beginning from 1970; that the total reserve amounting to Rs. 100 lakhs remained undisturbed till the year 1987 and in the year 1988 the same was transferred to general reserve and that the balance sheet showed that the amounts credited to the `loan redemption reserve were not invested outside the company but remained internally invested, on the facts found, were to relevant for determining as to whether the amount was an asset or provision. As held in Vazir Sultan the true nature and character of an appropriation has to be determined with reference to the substance of the matter, one must have regard to the intention with which and the purpose for which the appropriation has been made, such intention and purpose being gathered from the surrounding circumstances. The Vazir Sultans case (supra) also holds that if any retention or appropriation of a sum falls within the definition of `provision it can never be a reserve but it does not fallow that if the retention or appropriation is not a `provision it is automatically a reserve. The fact that amount has been set apart for redeeming liabilities makes it obvious that the intention is for clearing liabilities and to acquiring an asset. Bearing in mind these aspects, it is clear that the amount in question cannot be regarded as a `reserve. It has to be regarded as a `provision. Clearly the amount was set apart to meet a loan liability. It may also be noticed that the amount set apart is less that the respondents liabilities. It cannot be regarded as an asset. The decision in Vazir Sultans case (supra) was not correctly appreciated by the High Court. In this view, the questions deserve to be answered in the negative. 6. For the aforesaid reasons, | 1[ds]On a plain reading of cl. 7(1)(a) and (b) and cl. 7(2) above it will appear clear that though the term "provision" is defined positively by specifying what it means the definition of "reserve" is negative in form and not exhaustive in the sense that it only specific certain amounts which are not to be included in the term "reserve". In other words the effect of reading the two definitions together is that if any retention or appropriation of a sum falls within the definition of "provision" it can never be a reserve but it does not follow that if the retention or appropriation is not a provision it is automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purpose for which such retention or appropriation has been made because the substances of the mater is to be regarded and in this context the primary dictionary meaning of the term "reserve" may have to be availed of. But it is clear beyond doubt that if any retention or appropriation of a sum is not a provision, that is to say, if it is not designated to meet depreciation, renewals or diminution in value of assets or any known liability the same is not necessarily a reserve. We are emphasising this aspect of the matter because during the hearing almost all counsel for the assesses strenuously contended before us that once it was shown or became clear that the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a reserve. The fallacy underlying the contention becomes apparent if the negative and non-exhaustive aspects of the definition of reserve are borne in mind. Having regard to the type of definitions of the two concepts which are to be found in cl. 7 of Pt. III the proper approach in our view would be first to ascertain whether the particular retention or appropriation of a sum falls within the expression "provision" and if it does then clearly the concerned sum will have to be excluded from the computation of capital, nut in case the retention or appropriation of the sum is not a provision as defined, the question will have to be decided by reference to the true nature and character of the sum so retained or appropriated having regard to several factors as mentioned above and if the concerned sum is in fact a reserve then it will be taken into account for the computation of capital."5. In view of the aforestated legal position, the aspects taken into consideration by the tribunal and affirmed by the High Court that there was no stipulation by the Government for creation of loan redemption reserve; that the assessee had not kept to the schedule for repayment; that the assessee, on its own violation, had created a loan redemption reserve by making appropriation of profit of Rs. 10 lakhs each year beginning from 1970; that the total reserve amounting to Rs. 100 lakhs remained undisturbed till the year 1987 and in the year 1988 the same was transferred to general reserve and that the balance sheet showed that the amounts credited to the `loan redemption reserve were not invested outside the company but remained internally invested, on the facts found, were to relevant for determining as to whether the amount was an asset or provision. As held in Vazir Sultan the true nature and character of an appropriation has to be determined with reference to the substance of the matter, one must have regard to the intention with which and the purpose for which the appropriation has been made, such intention and purpose being gathered from the surrounding circumstances. The Vazir Sultans case (supra) also holds that if any retention or appropriation of a sum falls within the definition of `provision it can never be a reserve but it does not fallow that if the retention or appropriation is not a `provision it is automatically a reserve. The fact that amount has been set apart for redeeming liabilities makes it obvious that the intention is for clearing liabilities and to acquiring an asset. Bearing in mind these aspects, it is clear that the amount in question cannot be regarded as a `reserve. It has to be regarded as a `provision. Clearly the amount was set apart to meet a loan liability. It may also be noticed that the amount set apart is less that the respondents liabilities. It cannot be regarded as an asset. The decision in Vazir Sultans case (supra) was not correctly appreciated by the High Court. In this view, the questions deserve to be answered in the negative. | 1 | 2,591 | 897 | ### 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:
of providing for depreciation, renewals or diminution in value of assets, or retained by way of providing for any known liability of which the amount cannot be determined with substantial accuracy;(b) the expression `reserve shall not, subject as aforesaid, include any amount written off or retained by way of providing for depreciation, renewals or diminution in value of assets or retained by the way of providing for any known liability....and in this sub-clause the expression `liability shall include all liability in respect of expenditure contracted for an all disputed or contingent liabilities.(2) Where -(a) any amount written off or retained by way of providing for depreciation renewals or diminution in value of assets, not being an amount written off in relation to fixed assets before the commencement of this Act; or(b) any amount retained by way or providing for any known liability; is in excess of the amount which in the opinion of the directions, is reasonably necessary for the purpose, the excess shall be treated for the purposes of this Schedule as a `reserve and not a `provision.On a plain reading of cl. 7(1)(a) and (b) and cl. 7(2) above it will appear clear that though the term "provision" is defined positively by specifying what it means the definition of "reserve" is negative in form and not exhaustive in the sense that it only specific certain amounts which are not to be included in the term "reserve". In other words the effect of reading the two definitions together is that if any retention or appropriation of a sum falls within the definition of "provision" it can never be a reserve but it does not follow that if the retention or appropriation is not a provision it is automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purpose for which such retention or appropriation has been made because the substances of the mater is to be regarded and in this context the primary dictionary meaning of the term "reserve" may have to be availed of. But it is clear beyond doubt that if any retention or appropriation of a sum is not a provision, that is to say, if it is not designated to meet depreciation, renewals or diminution in value of assets or any known liability the same is not necessarily a reserve. We are emphasising this aspect of the matter because during the hearing almost all counsel for the assesses strenuously contended before us that once it was shown or became clear that the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a reserve. The fallacy underlying the contention becomes apparent if the negative and non-exhaustive aspects of the definition of reserve are borne in mind. Having regard to the type of definitions of the two concepts which are to be found in cl. 7 of Pt. III the proper approach in our view would be first to ascertain whether the particular retention or appropriation of a sum falls within the expression "provision" and if it does then clearly the concerned sum will have to be excluded from the computation of capital, nut in case the retention or appropriation of the sum is not a provision as defined, the question will have to be decided by reference to the true nature and character of the sum so retained or appropriated having regard to several factors as mentioned above and if the concerned sum is in fact a reserve then it will be taken into account for the computation of capital."5. In view of the aforestated legal position, the aspects taken into consideration by the tribunal and affirmed by the High Court that there was no stipulation by the Government for creation of loan redemption reserve; that the assessee had not kept to the schedule for repayment; that the assessee, on its own violation, had created a loan redemption reserve by making appropriation of profit of Rs. 10 lakhs each year beginning from 1970; that the total reserve amounting to Rs. 100 lakhs remained undisturbed till the year 1987 and in the year 1988 the same was transferred to general reserve and that the balance sheet showed that the amounts credited to the `loan redemption reserve were not invested outside the company but remained internally invested, on the facts found, were to relevant for determining as to whether the amount was an asset or provision. As held in Vazir Sultan the true nature and character of an appropriation has to be determined with reference to the substance of the matter, one must have regard to the intention with which and the purpose for which the appropriation has been made, such intention and purpose being gathered from the surrounding circumstances. The Vazir Sultans case (supra) also holds that if any retention or appropriation of a sum falls within the definition of `provision it can never be a reserve but it does not fallow that if the retention or appropriation is not a `provision it is automatically a reserve. The fact that amount has been set apart for redeeming liabilities makes it obvious that the intention is for clearing liabilities and to acquiring an asset. Bearing in mind these aspects, it is clear that the amount in question cannot be regarded as a `reserve. It has to be regarded as a `provision. Clearly the amount was set apart to meet a loan liability. It may also be noticed that the amount set apart is less that the respondents liabilities. It cannot be regarded as an asset. The decision in Vazir Sultans case (supra) was not correctly appreciated by the High Court. In this view, the questions deserve to be answered in the negative. 6. For the aforesaid reasons,
### Response:
1
### Explanation:
On a plain reading of cl. 7(1)(a) and (b) and cl. 7(2) above it will appear clear that though the term "provision" is defined positively by specifying what it means the definition of "reserve" is negative in form and not exhaustive in the sense that it only specific certain amounts which are not to be included in the term "reserve". In other words the effect of reading the two definitions together is that if any retention or appropriation of a sum falls within the definition of "provision" it can never be a reserve but it does not follow that if the retention or appropriation is not a provision it is automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purpose for which such retention or appropriation has been made because the substances of the mater is to be regarded and in this context the primary dictionary meaning of the term "reserve" may have to be availed of. But it is clear beyond doubt that if any retention or appropriation of a sum is not a provision, that is to say, if it is not designated to meet depreciation, renewals or diminution in value of assets or any known liability the same is not necessarily a reserve. We are emphasising this aspect of the matter because during the hearing almost all counsel for the assesses strenuously contended before us that once it was shown or became clear that the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a reserve. The fallacy underlying the contention becomes apparent if the negative and non-exhaustive aspects of the definition of reserve are borne in mind. Having regard to the type of definitions of the two concepts which are to be found in cl. 7 of Pt. III the proper approach in our view would be first to ascertain whether the particular retention or appropriation of a sum falls within the expression "provision" and if it does then clearly the concerned sum will have to be excluded from the computation of capital, nut in case the retention or appropriation of the sum is not a provision as defined, the question will have to be decided by reference to the true nature and character of the sum so retained or appropriated having regard to several factors as mentioned above and if the concerned sum is in fact a reserve then it will be taken into account for the computation of capital."5. In view of the aforestated legal position, the aspects taken into consideration by the tribunal and affirmed by the High Court that there was no stipulation by the Government for creation of loan redemption reserve; that the assessee had not kept to the schedule for repayment; that the assessee, on its own violation, had created a loan redemption reserve by making appropriation of profit of Rs. 10 lakhs each year beginning from 1970; that the total reserve amounting to Rs. 100 lakhs remained undisturbed till the year 1987 and in the year 1988 the same was transferred to general reserve and that the balance sheet showed that the amounts credited to the `loan redemption reserve were not invested outside the company but remained internally invested, on the facts found, were to relevant for determining as to whether the amount was an asset or provision. As held in Vazir Sultan the true nature and character of an appropriation has to be determined with reference to the substance of the matter, one must have regard to the intention with which and the purpose for which the appropriation has been made, such intention and purpose being gathered from the surrounding circumstances. The Vazir Sultans case (supra) also holds that if any retention or appropriation of a sum falls within the definition of `provision it can never be a reserve but it does not fallow that if the retention or appropriation is not a `provision it is automatically a reserve. The fact that amount has been set apart for redeeming liabilities makes it obvious that the intention is for clearing liabilities and to acquiring an asset. Bearing in mind these aspects, it is clear that the amount in question cannot be regarded as a `reserve. It has to be regarded as a `provision. Clearly the amount was set apart to meet a loan liability. It may also be noticed that the amount set apart is less that the respondents liabilities. It cannot be regarded as an asset. The decision in Vazir Sultans case (supra) was not correctly appreciated by the High Court. In this view, the questions deserve to be answered in the negative.
|
Captain Subash Kumar Vs. Principal Officer, Mercantile Marinedepartment, Madras | Act by the appropriate authorities under Part VI are valuable certificates and if the holder of such a certificate of competency issued under the provisions of Part VI is alleged to have committed misconduct or acts of incompetency there is no reason why an inquiry into that misconduct or incompetency cannot be ordered by the Central Government to a court competent to exercise jurisdiction under Section 361 of the Act 25. Section 363 does not envisage the court acting on a statement transmitted by the Central Government to conduct a formal investigation into the shipping casualty but only the courts making an inquiry into the charge of incompetency or misconduct. Section 364 provides giving of opportunity to the person to make defence. Section 365 empowers the court to regulate its proceedings. Section 369 provides that the court shall, in the case of all investigations or inquiries under this part, transmit to the Central Government a full report or its conclusions which it has arrived at together with the evidence. Under sub-section (2) of that section where the investigation or inquiry affects a master or an officer of a ship other than an Indian ship who holds a certificate under the law of any country outside India, the Central Government may transmit a copy of the report together with the evidence to the proper authority in that country. Section 370 deals with power of court as to certificates granted by Central Government. A certificate can be cancelled or suspended under clause (a) by a court holding formal investigation and under clause (b) by a court holding inquiry under this part into the conduct of the master, mate or engineer if the court finds that he is incompetent or has been guilty of any gross act of drunkenness, tyranny or other misconduct or in a case of collision has failed to render such assistance or give such information as is required by Section 348. Under sub-section (3), where the court cancels or suspends a certificate, the court shall forward it to the Central Government together with the report which it is required by this part to transmit to it. Thus, this section deals with power of the court while holding a formal investigation into a shipping casualty under clause (a) and while holding an inquiry into the conduct of the master, mate or engineer i.e. otherwise than while holding a formal investigation into shipping casualty. If the expression "in any case" is interpreted to cover a foreign ship by a foreign master but holding an Indian certificate having a shipping casualty outside the territorial waters Sections 363 and 370(b) may be applicable. If on the other hand the words "in any case" is not allowed to be interpreted to include such a master of such a ship and in such a casualty it may not be covered 26. The question then is whether the instant complaint can be construed as a statement of the Central Government as envisaged in Section 363. One of the requisites of Section 363 is that the Central Government must have reason to believe that there are grounds for charging any master etc. with incompetency or misconduct; and such reason to believe must have been arrived at otherwise than in the course of a formal investigation into the shipping casualty and it is the Central Government who may transmit the statement of a case to a court having jurisdiction under Section 361. We have to examine whether the complaint is ex facie under Section 363. It nowhere mentions that the Central Government had such reason to believe. It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government. It also nowhere mentions that the reason to believe had been found otherwise than in the course of a formal investigation into the shipping casualty. On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused. There is no doubt that he is not empowered under Section 363. In para 6 the complaint says that the court under Section 363 has got powers to make an inquiry into the charges of incompetency or misconduct of the accused and para 8 mentions : "The inquiry so as to cancel the certificate of the competency of the master namely the accused which has been granted by the Central Government may be recommended under this Act after holding the abovesaid inquiry and thus render justice." * Therefore, prima facie the complaint does not disclose the ingredients required under Section 363 27. We enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the answer is in the negative. We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have been available 28. However, the instant appeal is from an order of the High Court refusing to quash the complaint and the proceedings. Quashing of the complaint could have been done, if taken on its face value it failed to disclose any ingredient of the offence 29. The High Court found as fact that the appellant had two certificates issued under Section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively. The High Court correctly observed that Section 363 enables the Central Government to transmit a case to the court which has jurisdiction under Section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigations into shipping casualties but the High Court failed to notice that the complainant himself had no power under Section 363. High Court has not considered the extent of applicability of the Act and whether all ingredients required under Section 363 were satisfied in the impugned complaint | 1[ds]10. In the instant case the ship was not registered in India and was not required by this Act to be so registered.The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline. The submission that territorial waters extends to the limit of 200 nautical miles by virtue of notification extending exclusive economic zone to 200 nautical miles has, therefore, to be rejected. Admittedly the ship (M. V. Eamaco) at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India. If this be the position, the ship would not be covered by the provisions of Section 2 of the Act and consequently the provisions of the Act would not apply to the instant casualty17. Taking the second question it is obvious that the Act itself having not been applicable Part XII being a part of the Act will also not be applicable. This part deals with investigations and inquiries and contains Sections 357 to 389. Section 357 defines "coasts" to include the coasts of creeks and tidal rivers.From the above provisions it appears that Section 359 envisages the officers referred to in sub-section (2) of Section 358, receiving the information that a shipping casualty has occurred and reporting in writing the information to the Central Government and his proceeding to make a preliminary inquiry into the casualty and sending a report thereof to the Central Government or such other authority as may be appointed by it in that behalf. Under Section 360 the officer, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to the court empowered under Section 361 requesting it to make a formal investigation into any shipping casualty and the court shall thereupon make such investigation. Thus the officer himself may or when directed by the Central Government shall make an application to the court requesting it to make a formal investigation into any shipping casualty. Section 361 empowers the court to make a formal investigation under Part XII. A Judicial Magistrate of the First Class specially empowered in this behalf by the Central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into any shipping casualty under Part XII. What has to be noted in this section is that the court on an application of the officer makes a formal investigation into shipping casualties and not a preliminary inquiry which could have been done by the officer referred to in sub-section (2) of Section 358, and under Section 359 send a report to the Central Government. Section 360 also envisages making of application to court by the officer whether he had made preliminary inquiry or not, requesting it to make formal investigation into any shipping casualty. Thus under Section 361 what is being envisaged is a formal investigation into a shipping casualty and not a preliminary inquiry. Section 362 deals with only formal investigation and says that while making such investigation into a shipping casualty the court may inquire into any charge of incompetency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty. Under sub-section (2) a statement of the case has to be furnished to the master, mate or engineer. Section 362 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty. Section 363(1) envisages the Central Government, when it has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, (b) if he holds a certificate under the law of any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship, and the transmitting of the statement of the case to any court having jurisdiction under Section 361 where it may be convenient for the parties and witnesses to attend, and the Central Government may direct that court to make an inquiry into that charge. Under clause (a) the Central Government may exercise the power if the master, mate or engineer holds a certificate under the Act, in any case. Thus under this section the Central Government must have reason to believe that there are grounds for charging any master etc. with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, in case of a master of a foreign ship who holds a certificate under the Act "in any case". It also envisages the transmitting the statement of the case to any court having a jurisdiction under Section 361. The question is what would be the meaning of the words "in any case". Would it mean any case of shipping casualty, or it would mean any case irrespective of shipping casualty. In other words, under the above provisions if the appellant was the master of the ship and the casualty was outside the territorial waters of India and ship involved was of foreign ship would the expression "in any case" cover the instant case ? If the preceding sections of Part XII dealt with only shipping casualty, will it be permissible to interpret the words "in any case" irrespective of shipping casualty and anywhere outside the territorial waters of India and whoever is the owner of the vessel ? Will not the ejusdem generis rule apply ? Again when the Act itself is not applicable to a case, can these words be given a meaning beyond the applicability of the Act ? Verba secundum materiam subjectam intelligi nemo est qui nesciat. There is one who does not know that words are to be understood according to their subject matter. The subject matter of Part XII is investigations and inquiries into shipping casualty. Would "in any case" then mean in any case of shipping casualty ? We have read the other relevant provisions of the Act. Nemo aliquam partem recti intelligere potest, antequam totum interum atque interum parlegerit. No one can properly understand any part of a statue till he has read through the whole again and again. We find the Part VI of the Act deals with certificates of officers, namely, masters, mates andWe enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the answer is in the negative. We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have beenThe High Court found as fact that the appellant had two certificates issued under Section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively. The High Court correctly observed that Section 363 enables the Central Government to transmit a case to the court which has jurisdiction under Section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigations into shipping casualties but the High Court failed to notice that the complainant himself had no power under Section 363. High Court has not considered the extent of applicability of the Act and whether all ingredients required under Section 363 were satisfied in the impugned complaint | 1 | 6,177 | 1,394 | ### 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:
Act by the appropriate authorities under Part VI are valuable certificates and if the holder of such a certificate of competency issued under the provisions of Part VI is alleged to have committed misconduct or acts of incompetency there is no reason why an inquiry into that misconduct or incompetency cannot be ordered by the Central Government to a court competent to exercise jurisdiction under Section 361 of the Act 25. Section 363 does not envisage the court acting on a statement transmitted by the Central Government to conduct a formal investigation into the shipping casualty but only the courts making an inquiry into the charge of incompetency or misconduct. Section 364 provides giving of opportunity to the person to make defence. Section 365 empowers the court to regulate its proceedings. Section 369 provides that the court shall, in the case of all investigations or inquiries under this part, transmit to the Central Government a full report or its conclusions which it has arrived at together with the evidence. Under sub-section (2) of that section where the investigation or inquiry affects a master or an officer of a ship other than an Indian ship who holds a certificate under the law of any country outside India, the Central Government may transmit a copy of the report together with the evidence to the proper authority in that country. Section 370 deals with power of court as to certificates granted by Central Government. A certificate can be cancelled or suspended under clause (a) by a court holding formal investigation and under clause (b) by a court holding inquiry under this part into the conduct of the master, mate or engineer if the court finds that he is incompetent or has been guilty of any gross act of drunkenness, tyranny or other misconduct or in a case of collision has failed to render such assistance or give such information as is required by Section 348. Under sub-section (3), where the court cancels or suspends a certificate, the court shall forward it to the Central Government together with the report which it is required by this part to transmit to it. Thus, this section deals with power of the court while holding a formal investigation into a shipping casualty under clause (a) and while holding an inquiry into the conduct of the master, mate or engineer i.e. otherwise than while holding a formal investigation into shipping casualty. If the expression "in any case" is interpreted to cover a foreign ship by a foreign master but holding an Indian certificate having a shipping casualty outside the territorial waters Sections 363 and 370(b) may be applicable. If on the other hand the words "in any case" is not allowed to be interpreted to include such a master of such a ship and in such a casualty it may not be covered 26. The question then is whether the instant complaint can be construed as a statement of the Central Government as envisaged in Section 363. One of the requisites of Section 363 is that the Central Government must have reason to believe that there are grounds for charging any master etc. with incompetency or misconduct; and such reason to believe must have been arrived at otherwise than in the course of a formal investigation into the shipping casualty and it is the Central Government who may transmit the statement of a case to a court having jurisdiction under Section 361. We have to examine whether the complaint is ex facie under Section 363. It nowhere mentions that the Central Government had such reason to believe. It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government. It also nowhere mentions that the reason to believe had been found otherwise than in the course of a formal investigation into the shipping casualty. On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused. There is no doubt that he is not empowered under Section 363. In para 6 the complaint says that the court under Section 363 has got powers to make an inquiry into the charges of incompetency or misconduct of the accused and para 8 mentions : "The inquiry so as to cancel the certificate of the competency of the master namely the accused which has been granted by the Central Government may be recommended under this Act after holding the abovesaid inquiry and thus render justice." * Therefore, prima facie the complaint does not disclose the ingredients required under Section 363 27. We enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the answer is in the negative. We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have been available 28. However, the instant appeal is from an order of the High Court refusing to quash the complaint and the proceedings. Quashing of the complaint could have been done, if taken on its face value it failed to disclose any ingredient of the offence 29. The High Court found as fact that the appellant had two certificates issued under Section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively. The High Court correctly observed that Section 363 enables the Central Government to transmit a case to the court which has jurisdiction under Section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigations into shipping casualties but the High Court failed to notice that the complainant himself had no power under Section 363. High Court has not considered the extent of applicability of the Act and whether all ingredients required under Section 363 were satisfied in the impugned complaint
### Response:
1
### Explanation:
may be appointed by it in that behalf. Under Section 360 the officer, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to the court empowered under Section 361 requesting it to make a formal investigation into any shipping casualty and the court shall thereupon make such investigation. Thus the officer himself may or when directed by the Central Government shall make an application to the court requesting it to make a formal investigation into any shipping casualty. Section 361 empowers the court to make a formal investigation under Part XII. A Judicial Magistrate of the First Class specially empowered in this behalf by the Central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into any shipping casualty under Part XII. What has to be noted in this section is that the court on an application of the officer makes a formal investigation into shipping casualties and not a preliminary inquiry which could have been done by the officer referred to in sub-section (2) of Section 358, and under Section 359 send a report to the Central Government. Section 360 also envisages making of application to court by the officer whether he had made preliminary inquiry or not, requesting it to make formal investigation into any shipping casualty. Thus under Section 361 what is being envisaged is a formal investigation into a shipping casualty and not a preliminary inquiry. Section 362 deals with only formal investigation and says that while making such investigation into a shipping casualty the court may inquire into any charge of incompetency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty. Under sub-section (2) a statement of the case has to be furnished to the master, mate or engineer. Section 362 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty. Section 363(1) envisages the Central Government, when it has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, (b) if he holds a certificate under the law of any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship, and the transmitting of the statement of the case to any court having jurisdiction under Section 361 where it may be convenient for the parties and witnesses to attend, and the Central Government may direct that court to make an inquiry into that charge. Under clause (a) the Central Government may exercise the power if the master, mate or engineer holds a certificate under the Act, in any case. Thus under this section the Central Government must have reason to believe that there are grounds for charging any master etc. with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, in case of a master of a foreign ship who holds a certificate under the Act "in any case". It also envisages the transmitting the statement of the case to any court having a jurisdiction under Section 361. The question is what would be the meaning of the words "in any case". Would it mean any case of shipping casualty, or it would mean any case irrespective of shipping casualty. In other words, under the above provisions if the appellant was the master of the ship and the casualty was outside the territorial waters of India and ship involved was of foreign ship would the expression "in any case" cover the instant case ? If the preceding sections of Part XII dealt with only shipping casualty, will it be permissible to interpret the words "in any case" irrespective of shipping casualty and anywhere outside the territorial waters of India and whoever is the owner of the vessel ? Will not the ejusdem generis rule apply ? Again when the Act itself is not applicable to a case, can these words be given a meaning beyond the applicability of the Act ? Verba secundum materiam subjectam intelligi nemo est qui nesciat. There is one who does not know that words are to be understood according to their subject matter. The subject matter of Part XII is investigations and inquiries into shipping casualty. Would "in any case" then mean in any case of shipping casualty ? We have read the other relevant provisions of the Act. Nemo aliquam partem recti intelligere potest, antequam totum interum atque interum parlegerit. No one can properly understand any part of a statue till he has read through the whole again and again. We find the Part VI of the Act deals with certificates of officers, namely, masters, mates andWe enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the answer is in the negative. We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have beenThe High Court found as fact that the appellant had two certificates issued under Section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively. The High Court correctly observed that Section 363 enables the Central Government to transmit a case to the court which has jurisdiction under Section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigations into shipping casualties but the High Court failed to notice that the complainant himself had no power under Section 363. High Court has not considered the extent of applicability of the Act and whether all ingredients required under Section 363 were satisfied in the impugned complaint
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Jagannath Rao Vs. Raj Kishore & Others | Therefore the allegations will have to be confined to box No. 3 alone. To my mind, the circumstances given by Sri Shivaji Misra were sufficient to raise a suspicion that there had been intermeddling with box No. 3 and its contents."8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.9. The learned Judge after scrutinizing some of the ballot papers but not all of them, observe :"While examining them I noticed that some appeared to be suspicious and looked as if they had been tampered with. There was clear seal with the instrument provided in the compartment of respondent 1, but another seal was also to be found in the compartment of some other candidate. In some, the ink of the seal in the compartments of other candidates was watery and had spread and was fainter than that of the seal in the compartment of respondent 1. Such ballot papers were also found in Schedule I-A of the amendment application of the recriminatory petition. In some, the colour of the ink in the compartments of other candidates was different in colour then that of the seal in the compartment of respondent 1. In some, the size of the seal in the compartments of candidate was either smaller or bigger than the size of the seal in the compartment of respondent 1. In some, not only the ink of the seal put in the compartments, of the other candidates was fainter than that of the seal in the compartment of respondent 1, but the seal was also different in form. All that goes to point that some ballot papers had been tampered with in which the above condition of the seal and ink was found."10. From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted to re-examine the ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted. | 1[ds]8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted tothe ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted. | 1 | 2,640 | 781 | ### 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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Therefore the allegations will have to be confined to box No. 3 alone. To my mind, the circumstances given by Sri Shivaji Misra were sufficient to raise a suspicion that there had been intermeddling with box No. 3 and its contents."8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.9. The learned Judge after scrutinizing some of the ballot papers but not all of them, observe :"While examining them I noticed that some appeared to be suspicious and looked as if they had been tampered with. There was clear seal with the instrument provided in the compartment of respondent 1, but another seal was also to be found in the compartment of some other candidate. In some, the ink of the seal in the compartments of other candidates was watery and had spread and was fainter than that of the seal in the compartment of respondent 1. Such ballot papers were also found in Schedule I-A of the amendment application of the recriminatory petition. In some, the colour of the ink in the compartments of other candidates was different in colour then that of the seal in the compartment of respondent 1. In some, the size of the seal in the compartments of candidate was either smaller or bigger than the size of the seal in the compartment of respondent 1. In some, not only the ink of the seal put in the compartments, of the other candidates was fainter than that of the seal in the compartment of respondent 1, but the seal was also different in form. All that goes to point that some ballot papers had been tampered with in which the above condition of the seal and ink was found."10. From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted to re-examine the ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted.
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1
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8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted tothe ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted.
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Commissioner of Income Tax, Kerala Vs. Ambat Echukutty Menon | the assessee and Velappa Rowther are as follows:-"(12) The trees in the reared f orest have to but cut neatly and the relative stumps should not be either pulled out or cut out. (13) No. 3 should not enter on the lands from where trees are cut or on the sprouts coming up from there. After the cuttings sprouts are not to be cut." 11. No. 3 referred in clause (13) is the said Rowther. On the face of the agreement, therefore, the transaction was not a sale of trees with roots and stumps. Rather there was a prohibition that after the cutting, sprouts were not to be cut. The agreement, however, did not indicate as to what was the object of the assessee in incorporating clauses (12) and (13) in the agreement. Was it the regeneration of the trees for earning more income or was it something e lse ? The subsequent conduct of the assessee as appeared from the facts placed before the Income-tax authorities without anything more will indicate that the object of the assessee was to protect the land falling vacant after the cutting of the trees from being damaged by the licensee by at random cutting of the stumps and uprooting of the roots. The trees sold were spread in an area of 60 acres of land only. Even in that area the trees were not in any thick or continuous forest. They were interspersed by paddy fields. In its very first communication to the Income-Tax Officer sent on 3-4- 1963 the assessee perhaps was made aware of the decision of the Kerala High Court in Commissioner of Income-Tax, Kerala v. Venugopala Varma Raj a (1) which was a case of private forest governed by the Madras Act. The assessee, therefore, claimed that there were no private forests in Cochin area of Kerala where the land was situated. The assessee asserted that in substance and in effect th e sale was of the entire standing timber i.e. totality of the trees and "the sale was effected with a view to extend wet or dry cultivation to that area as well since the standing trees were a hindrance for such extensions." In this very letter the a ssessee also asserted-"This is the very first time that our Thavazhi has sold the trees. The trees, the subject matter of the sale contract, were there at the time of the purchase of the agricultural lands by our Thavazhi in 1080 M.E. The trees were old trees. No tree had been sold after our Thavazhi became the owner of the agricultural lands. A large extent of agricultural lands was purchased and these trees formed part and parcel of such holdings. None of us know when the trees began to grow. After purchase of the lands we had developed the same and in the process we sold the trees with the object mentioned above. The present sale has been the only sale and it will be the last one also since our idea is to extend cultivation t o this area as well." 12. The Tribunal in its appellate order noticed the argument of the assessee that its sole occupation was agriculture and the attraction in the purchase of the land in the year 1905 was two irrigational channels contained therein. It also noticed the other facts stated in the letter aforesaid of the assessee and finally concluded on the basis of clauses (12) and (13) of the agreement-"It is clear from these that the assessee was reserving to itself t he results of the future growth and a source of income." 13. The case was squarely covered, in its opinion, by the decision of the Kerala High Court in Venugopalas case. It further observed that the assessee was claiming exemption and it was upto him to furnish all the information as to what trees would not regenerate, what kind of trees were sold etc. The assessee had failed to furnish these details. Yet it would be noticed that without rejecting the assessees stand that the transaction in question was the first and the last sale of trees by the assessee and without finding that the object of the assessee was not to convert the land for cultivation but to earn income by regeneration of trees, it upheld the view of the departmental authorities that the receipt was a revenue receipt assessable to income-tax. It should be noted that the assessment made was not for default of the assessee to produce any relevant material but a regular assessment on consideration of such materials as were produced by it. It was not asked to produce any other evidence or material to substantiate the stand taken by it. Nor was the stand rejected. In such a situation it was not a question of assessees claiming any exemption and failing to get it for its alleged failure to furnish any more details. But it was a case where in order to net the receipt as a revenue receipt it was for the department to reject the assessees stand and to hold that the object of the assessee in not allowing the licensee to cut the stumps and uproot the roots was a regeneration of the income. The High Court has also noticed the fact as found mentioned in the order of the Tribunal that by the time the assessment was completed by the Income-Tax Officer an area of 10 acres had been converted into cultivable land. In our opinion, therefore, the High Court rightly distinguished the decision in Venugopalas case (supra) and applied the ratio of that of Vishnudattas case (supra). As I have observed above the facts of this case were on a line which on the surface was blurred and indistinct, yet, on a careful examination of the matter I find that the dividing line, though thin, nonetheless , is distinct enough to make this case fit for application of the ratio of the decision of this Court in Vishnudattas case. | 0[ds]On the face of the agreement, therefore, the transaction was not a sale of trees with roots and stumps. Rather there was a prohibition that after the cutting, sprouts were not to be cut. The agreement, however, did not indicate as to what was the object of the assessee in incorporating clauses (12) and (13) in the agreementThe subsequent conduct of the assessee as appeared from the facts placed before the Income-tax authorities without anything more will indicate that the object of the assessee was to protect the land falling vacant after the cutting of the trees from being damaged by the licensee by at random cutting of the stumps and uprooting of the roots. The trees sold were spread in an area of 60 acres of land only. Even in that area the trees were not in any thick or continuous forest. They were interspersed by paddy fieldsIn its very first communication to the Income-Tax Officer sent on 3-4- 1963 the assessee perhaps was made aware of the decision of the Kerala High Court in Commissioner of Income-Tax, Kerala v. Venugopala Varma Raj a (1) which was a case of private forest governed by the Madras ActThe assessee, therefore, claimed that there were no private forests in Cochin area of Kerala where the land was situated. The assessee asserted that in substance and in effect th e sale was of the entire standing timber i.e. totality of the trees and "the sale was effected with a view to extend wet or dry cultivation to that area as well since the standing trees were a hindrance for such extensions." In this very letter the a ssessee alsos is the very first time that our Thavazhi has sold the trees. The trees, the subject matter of the sale contract, were there at the time of the purchase of the agricultural lands by our Thavazhi in 1080 M.E. The trees were old trees. No tree had been sold after our Thavazhi became the owner of the agricultural lands. A large extent of agricultural lands was purchased and these trees formed part and parcel of such holdings. None of us know when the trees began to grow. After purchase of the lands we had developed the same and in the process we sold the trees with the object mentioned above. The present sale has been the only sale and it will be the last one also since our idea is to extend cultivation t o this area ase Tribunal in its appellate order noticed the argument of the assessee that its sole occupation was agriculture and the attraction in the purchase of the land in the year 1905 was two irrigational channels contained therein. It also noticed the other facts stated in the letter aforesaid of the assessee and finally concluded on the basis of clauses (12) and (13) of thet is clear from these that the assessee was reserving to itself t he results of the future growth and a source of income."The case was squarely covered, in its opinion, by the decision of the Kerala High Court in Venugopalas case. It further observed that the assessee was claiming exemption and it was upto him to furnish all the information as to what trees would not regenerate, what kind of trees were sold etc. The assessee had failed to furnish these details. Yet it would be noticed that without rejecting the assessees stand that the transaction in question was the first and the last sale of trees by the assessee and without finding that the object of the assessee was not to convert the land for cultivation but to earn income by regeneration of trees, it upheld the view of the departmental authorities that the receipt was a revenue receipt assessable to income-tax. It should be noted that the assessment made was not for default of the assessee to produce any relevant material but a regular assessment on consideration of such materials as were produced by it. It was not asked to produce any other evidence or material to substantiate the stand taken by it. Nor was the stand rejected. In such a situation it was not a question of assessees claiming any exemption and failing to get it for its alleged failure to furnish any more details. But it was a case where in order to net the receipt as a revenue receipt it was for the department to reject the assessees stand and to hold that the object of the assessee in not allowing the licensee to cut the stumps and uproot the roots was a regeneration of the income. The High Court has also noticed the fact as found mentioned in the order of the Tribunal that by the time the assessment was completed by the Income-Tax Officer an area of 10 acres had been converted into cultivable land. In our opinion, therefore, the High Court rightly distinguished the decision in Venugopalas case (supra) and applied the ratio of that of Vishnudattas case (supra). As I have observed above the facts of this case were on a line which on the surface was blurred and indistinct, yet, on a careful examination of the matter I find that the dividing line, though thin, nonetheless , is distinct enough to make this case fit for application of the ratio of the decision of this Court in Vishnudattas case. | 0 | 4,070 | 968 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the assessee and Velappa Rowther are as follows:-"(12) The trees in the reared f orest have to but cut neatly and the relative stumps should not be either pulled out or cut out. (13) No. 3 should not enter on the lands from where trees are cut or on the sprouts coming up from there. After the cuttings sprouts are not to be cut." 11. No. 3 referred in clause (13) is the said Rowther. On the face of the agreement, therefore, the transaction was not a sale of trees with roots and stumps. Rather there was a prohibition that after the cutting, sprouts were not to be cut. The agreement, however, did not indicate as to what was the object of the assessee in incorporating clauses (12) and (13) in the agreement. Was it the regeneration of the trees for earning more income or was it something e lse ? The subsequent conduct of the assessee as appeared from the facts placed before the Income-tax authorities without anything more will indicate that the object of the assessee was to protect the land falling vacant after the cutting of the trees from being damaged by the licensee by at random cutting of the stumps and uprooting of the roots. The trees sold were spread in an area of 60 acres of land only. Even in that area the trees were not in any thick or continuous forest. They were interspersed by paddy fields. In its very first communication to the Income-Tax Officer sent on 3-4- 1963 the assessee perhaps was made aware of the decision of the Kerala High Court in Commissioner of Income-Tax, Kerala v. Venugopala Varma Raj a (1) which was a case of private forest governed by the Madras Act. The assessee, therefore, claimed that there were no private forests in Cochin area of Kerala where the land was situated. The assessee asserted that in substance and in effect th e sale was of the entire standing timber i.e. totality of the trees and "the sale was effected with a view to extend wet or dry cultivation to that area as well since the standing trees were a hindrance for such extensions." In this very letter the a ssessee also asserted-"This is the very first time that our Thavazhi has sold the trees. The trees, the subject matter of the sale contract, were there at the time of the purchase of the agricultural lands by our Thavazhi in 1080 M.E. The trees were old trees. No tree had been sold after our Thavazhi became the owner of the agricultural lands. A large extent of agricultural lands was purchased and these trees formed part and parcel of such holdings. None of us know when the trees began to grow. After purchase of the lands we had developed the same and in the process we sold the trees with the object mentioned above. The present sale has been the only sale and it will be the last one also since our idea is to extend cultivation t o this area as well." 12. The Tribunal in its appellate order noticed the argument of the assessee that its sole occupation was agriculture and the attraction in the purchase of the land in the year 1905 was two irrigational channels contained therein. It also noticed the other facts stated in the letter aforesaid of the assessee and finally concluded on the basis of clauses (12) and (13) of the agreement-"It is clear from these that the assessee was reserving to itself t he results of the future growth and a source of income." 13. The case was squarely covered, in its opinion, by the decision of the Kerala High Court in Venugopalas case. It further observed that the assessee was claiming exemption and it was upto him to furnish all the information as to what trees would not regenerate, what kind of trees were sold etc. The assessee had failed to furnish these details. Yet it would be noticed that without rejecting the assessees stand that the transaction in question was the first and the last sale of trees by the assessee and without finding that the object of the assessee was not to convert the land for cultivation but to earn income by regeneration of trees, it upheld the view of the departmental authorities that the receipt was a revenue receipt assessable to income-tax. It should be noted that the assessment made was not for default of the assessee to produce any relevant material but a regular assessment on consideration of such materials as were produced by it. It was not asked to produce any other evidence or material to substantiate the stand taken by it. Nor was the stand rejected. In such a situation it was not a question of assessees claiming any exemption and failing to get it for its alleged failure to furnish any more details. But it was a case where in order to net the receipt as a revenue receipt it was for the department to reject the assessees stand and to hold that the object of the assessee in not allowing the licensee to cut the stumps and uproot the roots was a regeneration of the income. The High Court has also noticed the fact as found mentioned in the order of the Tribunal that by the time the assessment was completed by the Income-Tax Officer an area of 10 acres had been converted into cultivable land. In our opinion, therefore, the High Court rightly distinguished the decision in Venugopalas case (supra) and applied the ratio of that of Vishnudattas case (supra). As I have observed above the facts of this case were on a line which on the surface was blurred and indistinct, yet, on a careful examination of the matter I find that the dividing line, though thin, nonetheless , is distinct enough to make this case fit for application of the ratio of the decision of this Court in Vishnudattas case.
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On the face of the agreement, therefore, the transaction was not a sale of trees with roots and stumps. Rather there was a prohibition that after the cutting, sprouts were not to be cut. The agreement, however, did not indicate as to what was the object of the assessee in incorporating clauses (12) and (13) in the agreementThe subsequent conduct of the assessee as appeared from the facts placed before the Income-tax authorities without anything more will indicate that the object of the assessee was to protect the land falling vacant after the cutting of the trees from being damaged by the licensee by at random cutting of the stumps and uprooting of the roots. The trees sold were spread in an area of 60 acres of land only. Even in that area the trees were not in any thick or continuous forest. They were interspersed by paddy fieldsIn its very first communication to the Income-Tax Officer sent on 3-4- 1963 the assessee perhaps was made aware of the decision of the Kerala High Court in Commissioner of Income-Tax, Kerala v. Venugopala Varma Raj a (1) which was a case of private forest governed by the Madras ActThe assessee, therefore, claimed that there were no private forests in Cochin area of Kerala where the land was situated. The assessee asserted that in substance and in effect th e sale was of the entire standing timber i.e. totality of the trees and "the sale was effected with a view to extend wet or dry cultivation to that area as well since the standing trees were a hindrance for such extensions." In this very letter the a ssessee alsos is the very first time that our Thavazhi has sold the trees. The trees, the subject matter of the sale contract, were there at the time of the purchase of the agricultural lands by our Thavazhi in 1080 M.E. The trees were old trees. No tree had been sold after our Thavazhi became the owner of the agricultural lands. A large extent of agricultural lands was purchased and these trees formed part and parcel of such holdings. None of us know when the trees began to grow. After purchase of the lands we had developed the same and in the process we sold the trees with the object mentioned above. The present sale has been the only sale and it will be the last one also since our idea is to extend cultivation t o this area ase Tribunal in its appellate order noticed the argument of the assessee that its sole occupation was agriculture and the attraction in the purchase of the land in the year 1905 was two irrigational channels contained therein. It also noticed the other facts stated in the letter aforesaid of the assessee and finally concluded on the basis of clauses (12) and (13) of thet is clear from these that the assessee was reserving to itself t he results of the future growth and a source of income."The case was squarely covered, in its opinion, by the decision of the Kerala High Court in Venugopalas case. It further observed that the assessee was claiming exemption and it was upto him to furnish all the information as to what trees would not regenerate, what kind of trees were sold etc. The assessee had failed to furnish these details. Yet it would be noticed that without rejecting the assessees stand that the transaction in question was the first and the last sale of trees by the assessee and without finding that the object of the assessee was not to convert the land for cultivation but to earn income by regeneration of trees, it upheld the view of the departmental authorities that the receipt was a revenue receipt assessable to income-tax. It should be noted that the assessment made was not for default of the assessee to produce any relevant material but a regular assessment on consideration of such materials as were produced by it. It was not asked to produce any other evidence or material to substantiate the stand taken by it. Nor was the stand rejected. In such a situation it was not a question of assessees claiming any exemption and failing to get it for its alleged failure to furnish any more details. But it was a case where in order to net the receipt as a revenue receipt it was for the department to reject the assessees stand and to hold that the object of the assessee in not allowing the licensee to cut the stumps and uproot the roots was a regeneration of the income. The High Court has also noticed the fact as found mentioned in the order of the Tribunal that by the time the assessment was completed by the Income-Tax Officer an area of 10 acres had been converted into cultivable land. In our opinion, therefore, the High Court rightly distinguished the decision in Venugopalas case (supra) and applied the ratio of that of Vishnudattas case (supra). As I have observed above the facts of this case were on a line which on the surface was blurred and indistinct, yet, on a careful examination of the matter I find that the dividing line, though thin, nonetheless , is distinct enough to make this case fit for application of the ratio of the decision of this Court in Vishnudattas case.
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Om Prakash Vs. Union of India & Others | to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf. We are not concerned with the correctness of the earlier direction with regard to Section 5A enquiry and consideration of objections as it was not challenged by the respondent Union. .... Further in the same judgment, in paragraph 12 it has been held as under : 12. ... ... ... In view of the fact that the notification under Section 4(1) is a composite one and equally the declaration under Section 6 is also a composite one, unless the declaration under Section 6 is quashed in toto, it does not operate as if the entire declaration requires to be quashed. It is seen that the appellants had not filed any objections to the notice issued under Section 5A. 106. To satisfy ourselves with regard to the aforesaid arguments advanced by learned counsel for the appellants, we have gone through the record and find that Land Acquisition Collector had heard the objections and thereafter had forwarded the same to Lt. Governor for his opinion. The dates from which the objections were heard have already been given hereinabove. Similarly, the manner in which the same were dealt with by Lt. Governor has also been scrutinized. We do not find any infirmity or illegality in the procedure adopted in the same. We are of the considered opinion that there has been full, complete and strict compliance of the provisions contained in the Act by the respondents. 107. In the light of the aforesaid discussion, it is not necessary for us to consider the judgment of this Court in the case of Oxford English School (supra). This was a judgment by two learned Judges of this Court whereas the judgment in the case of Abhey Ram (supra) is by three learned Judges of this Court. Secondly, the question as to whether an order of stay passed in one case would be applicable to other similarly situated persons who had not been granted stay was not directly in issue in Oxford School Case (supra) decided by this Court. The question in the said case was primarily with regard to the period of limitation of three years within which a declaration under Section 6 is required to be made. 108. In the light of the foregoing discussion, more so, keeping in mind the ratio of which stood concluded by a judgment of Bench of three learned Judges of this Court in the case of Abhey Ram (supra), we are of the opinion that it is not a fit case where we are called upon to come to a different conclusion that subsequent declaration issued under Section 6 was beyond the period of limitation. Fact situation does not warrant us to do so. 109. Impugned orders passed by High Court from time to time would reveal that some have been dismissed primarily on the ground of delay and laches. We have gone through the said orders critically and find that if the appellants were under some bonafide mistake and had not challenged the issuance of notifications or declaration under Section 6 of the Act within a reasonable time then on the ground that there was an eclipse period during which they were not supposed to take any legal action, would be of no help to them. For that they have to thank their own stars. Some of the petitions have been filed either in the year 2000 or subsequent thereto. Thus, the High Court was justified in not entertaining such petitions on the ground of delay and laches. Even though, they have tried to attempt to explain the delay but such a long delay cannot be condoned more so, when proceeding of acquisition was initiated in the year 1980. 110. It may be recalled that notifications were issued in the year 1980. Almost 30 years have already passed by, but, no steps could be taken to formally complete the scheme so far. Thus, after such a long lapse of time, it will not only be harsh but inequitable also to quash the notifications so as to grant liberty to the appellants to challenge same in accordance with law. 111. The contention that in the cases of Abhey Ram and Gurdip Singh Uban, admittedly, no objections were preferred under Section 5A of the Act, therefore, the appellants cases stood on a higher pedestal than those which were considered in the aforesaid two cases also has no merits. It was also submitted that the so called satisfaction of Lt. Governor was not legally tenable as admittedly no records were sent to him by the Land Acquisition Collector after deciding the objections filed by the appellants along with his report. We have already mentioned above that there has been application of mind by the Lt. Governor to the facts of the case. 112. As has been mentioned above and held by this Court in Abhey Ram (supra) that notification under Section 4(1) of the Act being composite one it would not be proper and legally justifiable to quash the same more so when most of the appellants had not filed any objections under Section 5A of the Act. Thus, the declarations issued under Section 6 of the Act cannot be quashed. 113. The clear ratio of the aforesaid passage of this Court is that unless the declarations issued by respondents on as many as four dates, as mentioned hereinabove, in the year 1985, are quashed in toto, it cannot be said that respondents could not have proceeded further with regard to acquisition of those lands for which the same has not been quashed earlier. 114. In other words, it has been held that for all remaining lands for which neither the notifications under Section 4 nor declarations under Section 6 have been quashed, acquisition proceedings, notification/declaration issued for remaining lands would continue to hold good and respondents can proceed further. | 0[ds]20. Perusal of the aforesaid order would make it abundantly clear that while considering the appellants petition, High Court was of the opinion that in the light of the opinion expressed by Full Bench in Balak Ram Gupta Vs. Union of India reported in AIR 1987 Delhi 239 (refered to as B.R.Gupta-I), affirmed by this Court in Abhey Ram (Dead by LRs) and Ors. Vs. Union of India & Ors. (1997) 5 SCC 421 decided on 22.04.1997, holding therein that declaration issued under Section 6 was not beyond time21. Impugned order further shows that it placed reliance on another judgment of this Court reported in (1990) 7 SCC 44, Delhi Administration Vs. Gurdip Singh Uban and Ors. wherein it has been held that all those land-owners who had not preferred objections under Section 5A of the Act, could not be allowed to contend that either enquiry under Section 5A of the Act was bad or the declaration issued under Section 6 must be struck down on the ground of limitation or consequently, notification issued under Section 4 of the Act would stand lapsed. Thus, the appellants petition was not entertained and ultimately came to be dismissed22. It has neither been disputed here nor before the High Court that some of the appellants herein and many similarly situated land-owners had not preferred objections under Section 5A of the Act. There are other appeals, in which objections were preferred but have been decided against them or even though objections were preferred but were not pressed, on account of subsequent developments that have taken place. We would deal with those type of matters little later.76. Explanation 1 appended to first proviso of Section 6 of the Act, as reproduced hereinabove, makes it crystal clear that where any order of stay has been granted in favour of land owner, while computing the period of limitation of three years for issuance of Section 6 notification, the actual period covered by such order of stay should be excluded. In other words, the period of three years would automatically get extended by that much of period during which stay was in operation.83. In fact, after the pronouncement of the judgment in Abhey Ram (supra) rendered by three learned Judges of this Court, nothing survives in these Appeals, but looking to the vehement arguments advanced by learned senior counsel Mr. P.P. Rao, we have once again examined the whole controversy in the light of his arguments84. Even though judicial propriety and discipline create legal hurdles and impediments, in coming to a different conclusion than what has already been arrived at by three learned Judges of this Court in Abhey Ram (supra), but looking to the arguments advanced, we proceed to decide it.86. Even though the arguments advanced by learned counsel for the appellants appear to be attractive, but, on deeper scanning of the same we are of the opinion that on account of omission of the appellants, they cannot be granted dividend for their own defaults. The appellants should have been more careful, cautious and vigilant to get the matters listed along with those 73 petitions, which were ultimately allowed by the High Court. Not having done so, the appellants have obviously to suffer the consequence of issuance of notifications under Section 4 and further declaration under Section 6 of the Act87. Perusal of the opinion of Full Bench in B.R. Gupta-I would clearly indicate with regard to interpretation of the word any in Explanation 1 to the first proviso to Section 6 of the Act which expands the scope of stay order granted in one case of land owners to be automatically extended to all those land owners, whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the fact whether there was any separate order of stay or not as regards their lands. The logic assigned by Full Bench, the relevant portions whereof have been reproduced hereinabove, appear to be reasonable, apt, legal and proper88. It is also worth mentioning that each of the notifications issued under Section 4 of the Act was composite in nature. The interim order of stay granted in one of the matters, i.e., Munni Lal (supra) and confirmed subsequently have been reproduced hereinabove. We have also been given to understand that similar orders of stay were passed in many other petitions. Thus, in the teeth of such interim orders of stay, as reproduced hereinabove, we are of the opinion that during the period of stay respondents could not have proceeded further to issue declaration/notification under Section 6 of the Act. As soon as the interim stay came to be vacated by virtue of the main order having been passed in the writ petition, respondents, taking advantage of the period of stay during which they were restrained from issuance of declaration under Section 6 of the Act, proceeded further and issued notification under Section 6 of the Act89. Thus, in other words, the interim order of stay granted in one of the matters of the land owners would put complete restraint on the respondents to have proceeded further to issue notification under Section 6 of the Act. Had they issued the said notification during the period when the stay was operative, then obviously they may have been hauled up for committing contempt of court. The language employed in the interim orders of stay is also such that it had completely restrained the respondents from proceeding further in the matter by issuing declaration/notification under Section 6 of the Act90. No doubt, it is true that language of Section 6 of the Act implies that declarations can be issued piecemeal and it is not necessary to issue one single declaration for whole of the area which is covered under notification issued under Section 4 of the Act. Parliament was aware of such type of situation and that is why such a right has been carved out in favour of respondent-State. In many cases, urgency clause may be invoked, therefore, the right of filing objections under Section 5A of the Act would not arise. In some cases, even though objections might be preferred under Section 5A of the Act, but, may not be pressed in spite of knowledge of acquisition of land. Some of the land owners may not prefer to file any objections at all. In order to meet such type of exigencies as may arise in the case, power has been given by the Parliament to the Executive to issue declarations in piecemeal under Section 6 of the Act, wherever it may be feasible to implement the scheme91. The facts of the aforesaid cases would show that in the case in hand as many as four declarations under Section 6 of the Act were issued from time to time. Finally when declaration is quashed by any Court, it would only enure to the benefit of those who had approached the Court. It would certainly not extend the benefit to those who had not approached the Court or who might have gone into slumber92. To us, this appears to be the scheme of the Act and that was the intention of the Parliament. That being so, scheme of the Act as has been legislated, has to be given full effect to93. We find no ground to grant the same reliefs to those appellants to whom on earlier occasions, same relief was granted. At this long distance of time, it would neither be proper nor legally justified to grant that benefit to the appellants. If it is granted to even those who had not approached the court, then it would frustrate the very purpose and scope of the Act. In the light of the aforesaid, we are of the considered opinion that final quashment of the declaration under Section 6 of the Act by any Court, in some other matter, cannot be extended to the benefit of the present appellants. In any case, there is no ground for us, to rise to the occasion to do so, much less to the benefits of the appellants. In our considered opinion, it is not a fit case where situation or circumstances call upon us to rise to the occasion and to grant such inequitable reliefs to the appellants, after such a long delay94. Obviously, the appellants cannot be rewarded on account of their own lapse as they should have been vigilant enough to get their matters also listed along with those in whose favour ultimately judgment was pronounced95. Looking to the scheme of the Act, it is obvious that the appellants would certainly suffer the consequence of the interim order passed in some other matters preferred by other land owners challenging the notifications but finally benefit thereof cannot be accrued to the appellants as the same would obviously be confined to those petitioners only in whose favour orders were passed96. The arguments advanced by Mr. P.N. Lekhi appear to be attractive at the first instance, but, after going through closer and deeper scrutiny of the first proviso appended to Section 6 of the Act, we are of the considered opinion that certain period has been saved. First proviso clearly indicates that all actions which have taken place between the period, after commencement of Land Acquisition (Amendment & Validation) Ordinance 1967 but before the commencement of Land Acquisition (Amendment) Act 1984, would be saved. There is no dispute in these matters that notifications under Section 4 of the Act were issued on 05.11.1980 and 25.11.1980, the period which is covered by the first proviso to Section 6 of the Act. Thus, this ground sought to be advanced by Mr. Lekhi as well as Mr. Mukul Rohtagi, cannot be accepted and is decided against them97. In fact, this aspect of the matter has been dealt with elaborately in the opinion expressed by Full Bench in the case of B.R. Gupta-I. The proviso, according to Full Bench opinion, is very elaborate and made Explanation 1 applicable to the computation of any of the periods referred to in first proviso. In the said judgment, four situations have been carved out. Situation No.(ii) would cover the present case which deals with notification issued under Section 4 after 28.1.1967 but before 25.9.1981. Relevant portion of paragraph 11 thereof is reproduced hereunder :If the object of the legislature had been to confer the benefit of the explanation only to situations (iii) and (iv), it could have enacted the proviso as indicated earlier and added an explanation that, in computing the period of limitation, periods covered by stay orders would be excluded. The legislature need not have at all referred to situation (ii) above. But the Legislature also wanted to make it clear that the explanation would apply in respect of notifications under S.4 issued prior to 25-9-1981 as well. In doing so, the provision could well have taken into account even S.4 notifications issued prior to 29-1-1967 for it was quite conceivable that, though the two year period for following these up with declaration under S.6 had elapsed by 28-1-1969, the failure to make a S.6 declaration may have been the consequence of a stay order from a court. But the Legislature decided to exclude this category from the provision for extension in the explanation, and decided to confine itself to all notifications under S.4 made after 29-1-1967. This is very important and the manner in which cl.(a) of the proviso is worded so as to cover all notifications after 29-1-1967 and before 24-9-1984 precludes the contention urged on behalf of the petitioners seeking to limit the operation of the explanation. This contention is that the amendments of 1984 can at best only affect cases in which the three year period prescribed in 1967 had not expired by 24-9-1984. In other words, the argument is that only cases covered by notifications under S.4 issued after 25-9- 1981 can be affected by the amendments and have the benefit of the extended period contemplated in the explanation. This contention is clearly unacceptable. It runs counter to the entire scheme of the proviso (which specifically takes in all the period after 29-1-1967) and the explanation (which is specifically made applicable to both the clauses of the proviso). We are, therefore, of opinion that the language and intendment of the provision are clear and unambiguous and that the period of exclusion mentioned in the explanation should be taken into account in the cases of all notifications issued after 29-1-1967 whether or not the period otherwise limited under the proviso for a follow-up declaration under S.6 in respect thereof had expired or not. We, therefore, reject the contention urged on behalf of the petitioners.. Thus, considering the matter in the light of the opinion expressed by Full Bench as also with the plain reading of the first proviso and explanation (i) the following opinion can be safely deduced and the aforesaid conclusion would be inescapable that the exclusion envisaged is available in respect of notifications issued between the period commencing from 29.1.1967 and 24.9.198499. As mentioned hereinabove, in Chatro Devi-I both the learned Judges dismissed the writ petition in respect of the cases where Land Acquisition Collector was the same who had heard the arguments then prepared the report and also in respect of those who had not preferred any objections under Section 5A of the Act. The decision of Division Bench of Delhi High Court in B.R. Gupta-II (supra) was held to be incorrect and acquisition proceedings were upheld in respect of aforesaid cases. However, difference of opinion was confined only with regard to import and interpretation of Section 5A of the Act as to what would constitute hearing100. Primarily, Honble Mr. Justice Swatanter Kumar (as he then was) was of the opinion that even if matters have been heard by A and decided by B, it would amount to sufficient compliance of Section 5A of the Act but Honble Mr. Justice Madan B. Lokur was of the view that if a matter is heard by A obviously it has to be decided by him only and if it has been decided by B then the same would amount to miscarriage of justice and obviously would lead to violation of principles of natural justice101. Only to this limited extent, with regard to interpretation of Section 5A of the Act, matter was referred to third learned Judge Honble Mr. Justice T.S. Thakur, (as he then was). In his separate judgment, Honble Mr.Justice Thakur concurred with the view expressed by Honble Mr. Justice Madan B. Lokur titled Chatro Devi Vs. Union of India & Ors. reported in 137 (2007) DLT 14 known as Chatro Devi-II102. We have been given to understand that, feeling aggrieved by the majority opinion as expressed by two learned Judges in the matter of Chatro Devi II, the Union of India had filed 39 Special Leave Petitions in this Court wherein leave has been granted and appeals are now pending disposal in accordance with law103. At the first instance, we thought of getting those matters also listed before us for hearing so that once for all, the dispute pertaining to the notifications issued in the year 1980 would come to an end, but we have been informed that many of the respondents have not yet been served and some matters cannot be listed on account of technical defaults. We also requested learned counsel appearing for appellants to appear for those respondents but they showed their inability in doing so as the respondents of those appeals are not the same, who are appellants before us104. Thus, in this judgment, we are not considering the ambit, scope and interpretation of Section 5A of the Act and have specifically left it open, to be decided in the said 39 appeals105. It has not been disputed before us that after the opinion was expressed by Full Bench in B.R. Gupta-I all the connected 73 writ petitions came to be heard by Division Bench in B.R. Gupta-II. All the said petitions were allowed and the reliefs as claimed by them were granted vide order dated 18.11.1988. The question whether stay granted to some of the land owners prohibiting the authorities from publication of declaration under Section 6 of the Act would be applicable to others also, who had not obtained stay in that behalf came to be considered by a three-Judge Bench of this Court in the case of Abhey Ram (supra). In paragraph (9) thereof it has been held as under:-9. ..... The words stay of the action or proceeding have been widely interpreted by this Court and mean that any type of the orders passed by this Court would be an inhibitive action on the part of the authorities to proceed further. When the action of conducting an enquiry under Section 5A was put in issue and the declaration under Section 6 was questioned, necessarily unless the Court holds that enquiry under Section 5A was properly conducted and the declaration published under Section 6 was valid, it would not be open to the officers to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf. We are not concerned with the correctness of the earlier direction with regard to Section 5A enquiry and consideration of objections as it was not challenged by the respondent Union. ....r in the same judgment, in paragraph 12 it has been held as under :12. ... ... ... In view of the fact that the notification under Section 4(1) is a composite one and equally the declaration under Section 6 is also a composite one, unless the declaration under Section 6 is quashed in toto, it does not operate as if the entire declaration requires to be quashed. It is seen that the appellants had not filed any objections to the notice issued under Section 5A.. To satisfy ourselves with regard to the aforesaid arguments advanced by learned counsel for the appellants, we have gone through the record and find that Land Acquisition Collector had heard the objections and thereafter had forwarded the same to Lt. Governor for his opinion. The dates from which the objections were heard have already been given hereinabove. Similarly, the manner in which the same were dealt with by Lt. Governor has also been scrutinized. We do not find any infirmity or illegality in the procedure adopted in the same. We are of the considered opinion that there has been full, complete and strict compliance of the provisions contained in the Act by the respondents107. In the light of the aforesaid discussion, it is not necessary for us to consider the judgment of this Court in the case of Oxford English School (supra). This was a judgment by two learned Judges of this Court whereas the judgment in the case of Abhey Ram (supra) is by three learned Judges of this Court. Secondly, the question as to whether an order of stay passed in one case would be applicable to other similarly situated persons who had not been granted stay was not directly in issue in Oxford School Case (supra) decided by this Court. The question in the said case was primarily with regard to the period of limitation of three years within which a declaration under Section 6 is required to be made108. In the light of the foregoing discussion, more so, keeping in mind the ratio of which stood concluded by a judgment of Bench of three learned Judges of this Court in the case of Abhey Ram (supra), we are of the opinion that it is not a fit case where we are called upon to come to a different conclusion that subsequent declaration issued under Section 6 was beyond the period of limitation. Fact situation does not warrant us to do so109. Impugned orders passed by High Court from time to time would reveal that some have been dismissed primarily on the ground of delay and laches. We have gone through the said orders critically and find that if the appellants were under some bonafide mistake and had not challenged the issuance of notifications or declaration under Section 6 of the Act within a reasonable time then on the ground that there was an eclipse period during which they were not supposed to take any legal action, would be of no help to them. For that they have to thank their own stars. Some of the petitions have been filed either in the year 2000 or subsequent thereto. Thus, the High Court was justified in not entertaining such petitions on the ground of delay and laches. Even though, they have tried to attempt to explain the delay but such a long delay cannot be condoned more so, when proceeding of acquisition was initiated in the year 1980110. It may be recalled that notifications were issued in the year 1980. Almost 30 years have already passed by, but, no steps could be taken to formally complete the scheme so far. Thus, after such a long lapse of time, it will not only be harsh but inequitable also to quash the notifications so as to grant liberty to the appellants to challenge same in accordance with law111. The contention that in the cases of Abhey Ram and Gurdip Singh Uban, admittedly, no objections were preferred under Section 5A of the Act, therefore, the appellants cases stood on a higher pedestal than those which were considered in the aforesaid two cases also has no merits. It was also submitted that the so called satisfaction of Lt. Governor was not legally tenable as admittedly no records were sent to him by the Land Acquisition Collector after deciding the objections filed by the appellants along with his report. We have already mentioned above that there has been application of mind by the Lt. Governor to the facts of the case112. As has been mentioned above and held by this Court in Abhey Ram (supra) that notification under Section 4(1) of the Act being composite one it would not be proper and legally justifiable to quash the same more so when most of the appellants had not filed any objections under Section 5A of the Act. Thus, the declarations issued under Section 6 of the Act cannot be quashed113. The clear ratio of the aforesaid passage of this Court is that unless the declarations issued by respondents on as many as four dates, as mentioned hereinabove, in the year 1985, are quashed in toto, it cannot be said that respondents could not have proceeded further with regard to acquisition of those lands for which the same has not been quashed earlier114. In other words, it has been held that for all remaining lands for which neither the notifications under Section 4 nor declarations under Section 6 have been quashed, acquisition proceedings, notification/declaration issued for remaining lands would continue to hold good and respondents can proceed further. | 0 | 14,378 | 4,189 | ### Instruction:
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to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf. We are not concerned with the correctness of the earlier direction with regard to Section 5A enquiry and consideration of objections as it was not challenged by the respondent Union. .... Further in the same judgment, in paragraph 12 it has been held as under : 12. ... ... ... In view of the fact that the notification under Section 4(1) is a composite one and equally the declaration under Section 6 is also a composite one, unless the declaration under Section 6 is quashed in toto, it does not operate as if the entire declaration requires to be quashed. It is seen that the appellants had not filed any objections to the notice issued under Section 5A. 106. To satisfy ourselves with regard to the aforesaid arguments advanced by learned counsel for the appellants, we have gone through the record and find that Land Acquisition Collector had heard the objections and thereafter had forwarded the same to Lt. Governor for his opinion. The dates from which the objections were heard have already been given hereinabove. Similarly, the manner in which the same were dealt with by Lt. Governor has also been scrutinized. We do not find any infirmity or illegality in the procedure adopted in the same. We are of the considered opinion that there has been full, complete and strict compliance of the provisions contained in the Act by the respondents. 107. In the light of the aforesaid discussion, it is not necessary for us to consider the judgment of this Court in the case of Oxford English School (supra). This was a judgment by two learned Judges of this Court whereas the judgment in the case of Abhey Ram (supra) is by three learned Judges of this Court. Secondly, the question as to whether an order of stay passed in one case would be applicable to other similarly situated persons who had not been granted stay was not directly in issue in Oxford School Case (supra) decided by this Court. The question in the said case was primarily with regard to the period of limitation of three years within which a declaration under Section 6 is required to be made. 108. In the light of the foregoing discussion, more so, keeping in mind the ratio of which stood concluded by a judgment of Bench of three learned Judges of this Court in the case of Abhey Ram (supra), we are of the opinion that it is not a fit case where we are called upon to come to a different conclusion that subsequent declaration issued under Section 6 was beyond the period of limitation. Fact situation does not warrant us to do so. 109. Impugned orders passed by High Court from time to time would reveal that some have been dismissed primarily on the ground of delay and laches. We have gone through the said orders critically and find that if the appellants were under some bonafide mistake and had not challenged the issuance of notifications or declaration under Section 6 of the Act within a reasonable time then on the ground that there was an eclipse period during which they were not supposed to take any legal action, would be of no help to them. For that they have to thank their own stars. Some of the petitions have been filed either in the year 2000 or subsequent thereto. Thus, the High Court was justified in not entertaining such petitions on the ground of delay and laches. Even though, they have tried to attempt to explain the delay but such a long delay cannot be condoned more so, when proceeding of acquisition was initiated in the year 1980. 110. It may be recalled that notifications were issued in the year 1980. Almost 30 years have already passed by, but, no steps could be taken to formally complete the scheme so far. Thus, after such a long lapse of time, it will not only be harsh but inequitable also to quash the notifications so as to grant liberty to the appellants to challenge same in accordance with law. 111. The contention that in the cases of Abhey Ram and Gurdip Singh Uban, admittedly, no objections were preferred under Section 5A of the Act, therefore, the appellants cases stood on a higher pedestal than those which were considered in the aforesaid two cases also has no merits. It was also submitted that the so called satisfaction of Lt. Governor was not legally tenable as admittedly no records were sent to him by the Land Acquisition Collector after deciding the objections filed by the appellants along with his report. We have already mentioned above that there has been application of mind by the Lt. Governor to the facts of the case. 112. As has been mentioned above and held by this Court in Abhey Ram (supra) that notification under Section 4(1) of the Act being composite one it would not be proper and legally justifiable to quash the same more so when most of the appellants had not filed any objections under Section 5A of the Act. Thus, the declarations issued under Section 6 of the Act cannot be quashed. 113. The clear ratio of the aforesaid passage of this Court is that unless the declarations issued by respondents on as many as four dates, as mentioned hereinabove, in the year 1985, are quashed in toto, it cannot be said that respondents could not have proceeded further with regard to acquisition of those lands for which the same has not been quashed earlier. 114. In other words, it has been held that for all remaining lands for which neither the notifications under Section 4 nor declarations under Section 6 have been quashed, acquisition proceedings, notification/declaration issued for remaining lands would continue to hold good and respondents can proceed further.
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6 was valid, it would not be open to the officers to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf. We are not concerned with the correctness of the earlier direction with regard to Section 5A enquiry and consideration of objections as it was not challenged by the respondent Union. ....r in the same judgment, in paragraph 12 it has been held as under :12. ... ... ... In view of the fact that the notification under Section 4(1) is a composite one and equally the declaration under Section 6 is also a composite one, unless the declaration under Section 6 is quashed in toto, it does not operate as if the entire declaration requires to be quashed. It is seen that the appellants had not filed any objections to the notice issued under Section 5A.. To satisfy ourselves with regard to the aforesaid arguments advanced by learned counsel for the appellants, we have gone through the record and find that Land Acquisition Collector had heard the objections and thereafter had forwarded the same to Lt. Governor for his opinion. The dates from which the objections were heard have already been given hereinabove. Similarly, the manner in which the same were dealt with by Lt. Governor has also been scrutinized. We do not find any infirmity or illegality in the procedure adopted in the same. We are of the considered opinion that there has been full, complete and strict compliance of the provisions contained in the Act by the respondents107. In the light of the aforesaid discussion, it is not necessary for us to consider the judgment of this Court in the case of Oxford English School (supra). This was a judgment by two learned Judges of this Court whereas the judgment in the case of Abhey Ram (supra) is by three learned Judges of this Court. Secondly, the question as to whether an order of stay passed in one case would be applicable to other similarly situated persons who had not been granted stay was not directly in issue in Oxford School Case (supra) decided by this Court. The question in the said case was primarily with regard to the period of limitation of three years within which a declaration under Section 6 is required to be made108. In the light of the foregoing discussion, more so, keeping in mind the ratio of which stood concluded by a judgment of Bench of three learned Judges of this Court in the case of Abhey Ram (supra), we are of the opinion that it is not a fit case where we are called upon to come to a different conclusion that subsequent declaration issued under Section 6 was beyond the period of limitation. Fact situation does not warrant us to do so109. Impugned orders passed by High Court from time to time would reveal that some have been dismissed primarily on the ground of delay and laches. We have gone through the said orders critically and find that if the appellants were under some bonafide mistake and had not challenged the issuance of notifications or declaration under Section 6 of the Act within a reasonable time then on the ground that there was an eclipse period during which they were not supposed to take any legal action, would be of no help to them. For that they have to thank their own stars. Some of the petitions have been filed either in the year 2000 or subsequent thereto. Thus, the High Court was justified in not entertaining such petitions on the ground of delay and laches. Even though, they have tried to attempt to explain the delay but such a long delay cannot be condoned more so, when proceeding of acquisition was initiated in the year 1980110. It may be recalled that notifications were issued in the year 1980. Almost 30 years have already passed by, but, no steps could be taken to formally complete the scheme so far. Thus, after such a long lapse of time, it will not only be harsh but inequitable also to quash the notifications so as to grant liberty to the appellants to challenge same in accordance with law111. The contention that in the cases of Abhey Ram and Gurdip Singh Uban, admittedly, no objections were preferred under Section 5A of the Act, therefore, the appellants cases stood on a higher pedestal than those which were considered in the aforesaid two cases also has no merits. It was also submitted that the so called satisfaction of Lt. Governor was not legally tenable as admittedly no records were sent to him by the Land Acquisition Collector after deciding the objections filed by the appellants along with his report. We have already mentioned above that there has been application of mind by the Lt. Governor to the facts of the case112. As has been mentioned above and held by this Court in Abhey Ram (supra) that notification under Section 4(1) of the Act being composite one it would not be proper and legally justifiable to quash the same more so when most of the appellants had not filed any objections under Section 5A of the Act. Thus, the declarations issued under Section 6 of the Act cannot be quashed113. The clear ratio of the aforesaid passage of this Court is that unless the declarations issued by respondents on as many as four dates, as mentioned hereinabove, in the year 1985, are quashed in toto, it cannot be said that respondents could not have proceeded further with regard to acquisition of those lands for which the same has not been quashed earlier114. In other words, it has been held that for all remaining lands for which neither the notifications under Section 4 nor declarations under Section 6 have been quashed, acquisition proceedings, notification/declaration issued for remaining lands would continue to hold good and respondents can proceed further.
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Management of English Electric Company of India Vs. V. Manohara Rao and Others | The respondents filed a claim petition under Section 33-C(2) of the Industrial Disputes Act claiming difference in the wages paid to the permanent workmen and to the respondents. During pendency of the said claim petition the services of the respondents were terminated on October 16, 1991. A complaint is made under Section 33-A of the Industrial Disputes Act (Act for short) on the ground that during pendency of the proceedings filed under Section 33-C(2) of the Act the appellant has effected termination of services which amounts to unfair labour practice. On that basis the Labour Court held that the services of the respondents could not have been terminated and they were directed to be reinstated till the disposal of the claim petitions with back wages and other benefits. Against this order these appeals are preferred. A plain reading of Sections 33 and 33-A of the Act will make it clear that it is only during the pendency of any proceeding in respect of an industrial dispute the provisions of Section 33-A would be attracted and not otherwise. There was no industrial dispute but a claim petition under Section 33-C(2) of the Act was pending. This aspect was totally lost sight of by the Labour Court in dealing with this matter and, | 1[ds]A plain reading of Sections 33 andA of the Act will make it clear that it is only during the pendency of any proceeding in respect of an industrial dispute the provisions of SectionA would be attracted and not otherwise. There was no industrial dispute but a claim petition under Section) of the Act was pending. This aspect was totally lost sight of by the Labour Court in dealing with this matter and, | 1 | 231 | 81 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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The respondents filed a claim petition under Section 33-C(2) of the Industrial Disputes Act claiming difference in the wages paid to the permanent workmen and to the respondents. During pendency of the said claim petition the services of the respondents were terminated on October 16, 1991. A complaint is made under Section 33-A of the Industrial Disputes Act (Act for short) on the ground that during pendency of the proceedings filed under Section 33-C(2) of the Act the appellant has effected termination of services which amounts to unfair labour practice. On that basis the Labour Court held that the services of the respondents could not have been terminated and they were directed to be reinstated till the disposal of the claim petitions with back wages and other benefits. Against this order these appeals are preferred. A plain reading of Sections 33 and 33-A of the Act will make it clear that it is only during the pendency of any proceeding in respect of an industrial dispute the provisions of Section 33-A would be attracted and not otherwise. There was no industrial dispute but a claim petition under Section 33-C(2) of the Act was pending. This aspect was totally lost sight of by the Labour Court in dealing with this matter and,
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A plain reading of Sections 33 andA of the Act will make it clear that it is only during the pendency of any proceeding in respect of an industrial dispute the provisions of SectionA would be attracted and not otherwise. There was no industrial dispute but a claim petition under Section) of the Act was pending. This aspect was totally lost sight of by the Labour Court in dealing with this matter and,
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S. Nazeer Ahmed Vs. State Bank Of Mysore | based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under O.2 r.2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under O.2 r.2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under O.2 r.2 of the Code should not have been entertained at all by the trial court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii) In order that a plea of a bar under O. 2. r. 2(3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief (iii) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. It is not necessary to multiply authorities except to notice that the decisions in Sidramappa Vs. Rajashetty & Ors. [(1970) 3 S.C.R. 319], Deva Ram & Anr. Vs. Ishwar Chand & Anr. [(1995) Supp. 4 S.C.R. 369] and State of Maharashtra & Anr. Vs. M/s National Construction Company, Bombay and Anr. [(1996) 1 S.C.R. 293] have reiterated and re-emphasized this principle. 14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order II Rule 2 of the Code in view of the earlier suit for recovery of the mid term loan, especially in the context of Order XXXIV Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order XXXIV rule 14 read with rule 15 removes the bar if any that may be attracted by virtue of Order II Rule 2 of the Code. The decision of the Rangoon High Court in Pyu Municipality Vs. U. Tun Nyein (AIR 1933 Rangoon 158) relied on by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was barred by Order II Rule 2 of the Code, as the said decision itself has pointed out the effect of Order XXXIV Rule 14 and in the light of what we have stated above. 15. Then the question is whether the appellant has established that there was a tripartite arrangement come to, by which the bus was made over by him to one Fernandes and Fernandes undertook to the Bank to discharge the liability under the mid term loan. In support of his case, the appellant had only produced Exhibits D1 to D4 which only indicate an attempt to bring about an arrangement of that nature. But they do not show that there was any such concluded arrangement and there was a taking over of the liability by Fernandes as agreed to by the Bank. The fact that the Bank has paid the insurance premium for the bus in question, would not advance the case of the appellant since the Bank, as the hypothecatee of the bus was entitled to and in fact, as a prudent mortgagee, was bound to, protect the security and the insurance of the vehicle effected in hat behalf cannot be taken as a circumstance in support of the plea put forward by the appellant. The trial court, after considering the evidence, rightly noticed that the burden was on the appellant to show that he had handed over the possession of the vehicle to one Fernandes on the intervention of the Bank and on the basis of a tripartite arrangement or taking over of liability by Fernandes and that the liability of the appellant had come to an end thereby. Learned counsel for the Bank rightly submitted that no novation was proved so as to enable the appellant to riggle out of the liability under the loan transaction. The High Court has not interfered with the reasoning and conclusion of the trial court on this aspect and has in fact proceeded to grant the plaintiff Bank a decree for the suit amount based on the equitable mortgage. We were taken through Exhibits D1 to D4 and even a fresh document attempted to be marked in this Court along with its counter affidavit by the Bank. On going through the said documents, the other evidence and the reasoning adopted by the trial court, we are satisfied that there is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it. It is seen that the appellant has not even examined Fernandes in support of the plea of the tripartite arrangement and the taking over of the liability of the appellant, by him. In this situation, we see no reason to uphold the plea of the appellant that the liability has been transferred to Fernandes at the instance of the Bank and that the appellant was no more liable for the plaint amount. 16. | 1[ds]There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable. | 1 | 3,955 | 181 | ### 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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based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under O.2 r.2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under O.2 r.2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under O.2 r.2 of the Code should not have been entertained at all by the trial court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii) In order that a plea of a bar under O. 2. r. 2(3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief (iii) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. It is not necessary to multiply authorities except to notice that the decisions in Sidramappa Vs. Rajashetty & Ors. [(1970) 3 S.C.R. 319], Deva Ram & Anr. Vs. Ishwar Chand & Anr. [(1995) Supp. 4 S.C.R. 369] and State of Maharashtra & Anr. Vs. M/s National Construction Company, Bombay and Anr. [(1996) 1 S.C.R. 293] have reiterated and re-emphasized this principle. 14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order II Rule 2 of the Code in view of the earlier suit for recovery of the mid term loan, especially in the context of Order XXXIV Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order XXXIV rule 14 read with rule 15 removes the bar if any that may be attracted by virtue of Order II Rule 2 of the Code. The decision of the Rangoon High Court in Pyu Municipality Vs. U. Tun Nyein (AIR 1933 Rangoon 158) relied on by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was barred by Order II Rule 2 of the Code, as the said decision itself has pointed out the effect of Order XXXIV Rule 14 and in the light of what we have stated above. 15. Then the question is whether the appellant has established that there was a tripartite arrangement come to, by which the bus was made over by him to one Fernandes and Fernandes undertook to the Bank to discharge the liability under the mid term loan. In support of his case, the appellant had only produced Exhibits D1 to D4 which only indicate an attempt to bring about an arrangement of that nature. But they do not show that there was any such concluded arrangement and there was a taking over of the liability by Fernandes as agreed to by the Bank. The fact that the Bank has paid the insurance premium for the bus in question, would not advance the case of the appellant since the Bank, as the hypothecatee of the bus was entitled to and in fact, as a prudent mortgagee, was bound to, protect the security and the insurance of the vehicle effected in hat behalf cannot be taken as a circumstance in support of the plea put forward by the appellant. The trial court, after considering the evidence, rightly noticed that the burden was on the appellant to show that he had handed over the possession of the vehicle to one Fernandes on the intervention of the Bank and on the basis of a tripartite arrangement or taking over of liability by Fernandes and that the liability of the appellant had come to an end thereby. Learned counsel for the Bank rightly submitted that no novation was proved so as to enable the appellant to riggle out of the liability under the loan transaction. The High Court has not interfered with the reasoning and conclusion of the trial court on this aspect and has in fact proceeded to grant the plaintiff Bank a decree for the suit amount based on the equitable mortgage. We were taken through Exhibits D1 to D4 and even a fresh document attempted to be marked in this Court along with its counter affidavit by the Bank. On going through the said documents, the other evidence and the reasoning adopted by the trial court, we are satisfied that there is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it. It is seen that the appellant has not even examined Fernandes in support of the plea of the tripartite arrangement and the taking over of the liability of the appellant, by him. In this situation, we see no reason to uphold the plea of the appellant that the liability has been transferred to Fernandes at the instance of the Bank and that the appellant was no more liable for the plaint amount. 16.
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There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable.
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The Commissioner Of Income-Tax, Delhi Vs. The Delhi Flour Mills Co., Ltd., Delhi | case.14. Nor do we think it necessary in the present case, as we have said earlier, to decide whether there are distinctions between income-tax and excess profits tax. We are not concerned with the question whether income-tax should be deducted before the net profits under the agreement can be ascertained. We will assume that it cannot be. It is common sense and also firmly established on the authorities to which reference has already been made, that in ascertaining the divisible profits excess profits tax has to be deducted. As we have construed the agreement in this case, net profits mean the divisible profits and therefore they can be arrived at only after deduction of excess profits tax.15. We wish now to refer to the minority opinions in the House of Lords in 1942-2 All ER 528 on which the High Court seems largely to have based its decision. The dissenting opinion of Viscount Simon L. C. arose from the fact that he did not think that the words profits in the agreement then before the House meant the divisible profits. With the reasons for this view we are not concerned for these turned on the wording of that agreement. Having held that the word profits did not mean the divisible profits, he proceeded to consider whether excess profits tax could be deducted in ascertaining the net profits and in doing so said that as income-tax could be deducted as held in the Ashton Gas Co. case, 1906 AC 10, neither could excess profits tax, for, both were parts of the profits. He also said that the Court of Appeal was wrong in thinking that excess profits tax could be debited to the profit and loss account and therefore held that the net profit which is usually shown in that account has to be ascertained without deducting excess profits tax. We are not concerned with this part of the opinion of the Lord Chancellor either. It was given on the basis that the profits were not the divisible profits and we are concerned only with divisible profits. The other dissentient speech was by Lord Macmillan. He said substantially what Viscount Simon had said, and therefore it is unnecessary to deal with his view separately. It does not however appear to us that the dissentient Judges in the House of Lords held that if the profits were the divisible profits, excess profits tax could not be deducted before these could be ascertained. In the view that we have taken of the agreement before us, we cannot, therefore, derive any assistance from the dissentient opinions.16. One other case, namely, N. M. Rayaloo Iyer and Sons v. Commr. of Income-tax, Madras, 1954-26 ITR 265 : ((S) AIR 1955 Mad 56 ), was brought to our attention. This case also purports to follow the reasoning adopted in the minority judgments in 1942-2 All ER 528 and actually relied on the authority of the judgment under appeal. It is therefore unnecessary to refer to it further.17. It had been contended by the learned advocate for the appellant that even it the net profits mentioned in the agreement were not the divisible profits and even if income-tax could not be deducted to ascertain these profits, excess profits tax was a proper deduction to be made. It was said that excess profits tax was for this purpose different in nature from income-tax, for, (a) under S. 12 of the Excess Profits Tax Act, 1940, excess profits tax was deductible as an expense for the purpose of income-tax assessment; (b) that where the employer is a company, as in the present case, the income-tax paid is refundable to the shareholders which excess profits tax is not; (c) that excess profits tax is a "debt of the business and therefore an outgoing, and (d) that it was in the nature of a licence fee upon the payment of which alone the business could be carried on. It is unnecessary to consider these points as in our view the net profits in this case were the divisible profits and whether excess profits tax is distinguishable from income-tax for any of these reasons or not, it is properly deductible.18. We should also refer to an argument advanced by the assesses which was founded on S. 87-C of the Indian Companies Act, 1913, introduced by an amendment made in 1936, which provides that the remuneration of the managing agents of a company shall be a fixed percentage of its net annual profits, and that in calculating the net profits no deduction in respect of any tax or duty on income is to be made.It is said that the statute incorporates the universal commercial practice and therefore in construing the present agreement excess profits tax cannot be deducted.We are not aware whether the section incorporates any practice but we think that this contention is entirely unfounded for the section was applied only to a managing agency agreement made after the amending Act came into force, while the agreement in the present case was made before that date.19. Lastly, we have to point out that nothing turns on the fact that at the date the agreement under consideration was made, Excess Profits Tax Act had not come on the statute book nor perhaps been thought of, and therefore could not have been in the contemplation of the parties. If the net profits are the divisible profits, everything necessary to be excluded to arrive at the divisible profits has to be deducted whether it was in the contemplation of the parties or not.It is easy to imagine instances. Suppose after the agreement the Government imposed a licence fee on the payment of which alone the business could have been carried on and that licence fee was not in the contemplation of the parties when the agreement had been made. None the less it has clearly to be deducted in finding out the divisible profits. In the result we would answer the question framed in the affirmative. | 1[ds]The agreement is that "the net profits will be arrived at after allowing the working expenses, interest on loans and due depreciation but without setting aside anything to reserves or special funds." We can leave out the things expressly made not deductible for as to these no question arises, the question being whether something more, namely, excess profits tax, can be deducted. Working expenses, interest on loans and due depreciation have however been expressly made deductible in ascertaining the net profits. If these are all the deductions that can be made, excess profits tax cannot be deducted for it does not come under any one of them. But it seems to us that the agreement was not intended to lay down all the deductions that can be made. It is not in dispute that expenses like overhead expenses, litigation expenses and similar other expenses properly incurred for carrying on the business can be deducted in arriving at the net profits. These would not be included within "working expenses" for that expression is usually understood as referring to expenses debitable to the trading account as having been incurred directly in making the income shown there. If this were not the sense in which the expression "working expenses" was used and it was meant to cover all revenue expenses incurred, then there would have been no need to mention, interest on loans and depreciation, separately for these latter would have been included as revenue expenses in the expression "working expenses". We are therefore inclined to think that there are other items besides those expressly mentioned, which have to be deducted before the net profits can be arrivedother words, they are the divisible profits of the company, divisible that is to say, between the master and the servant. In order that the divisible profits can be ascertained, excess profits tax has of course to be deducted. As to that there does not seem to be any doubt, for, that part of the profits which is taken away by the State as excess profits tax, is not available either to the master or the servant and cannot therefore be divided betweenwe do not refer to these judgments as supporting anything that we say but because the High Court unwittingly fell into the error of thinking that the Walchand and Co. Ltd. case (AIR 1944 Bom 5 ) came before the James Finlay and Co. Ltd. case (47 Bom LR 774) and that in the later case Beaumont C. J. had doubted the correctness of what he had said in the former. These observations are wholly wrong because, the James Finlay and Co. Ltd. case (47 Bom LR 774) was decided long before the Walchand and Co. Ltd.. case (AIR 1944 Bom 5 ) had been decided. Neither do we find that there is any conflict between the two cases. In the Walchand and Co. Ltd. case (AIR 1944 Bom 5 ), Beaumont C. J. gave reasons for making a distinction betweenand excess profits tax and thought that the distinction between them made in the English cases to which we have referred, was not of substance. We do not think it necessary to say anything as to whether Beaumont C. J. was right in this view.Now it seems to us that there is nothing in the Ashton Gas Co. case, 1906 AC 10 which prevents us from holding that in ascertaining the net profits for the purpose of the agreement that is before us, excess profits tax has to be excluded. That was not a case of profit sharing. It was not concentred with deciding what sums are deductible in arriving at the divisible profits in a profit sharing agreement. That is what we have to decide. Therefore we think that the Ashton Gas Co. case, 1906 AC 10 does not assist in answering the question that has arisen in this case.e should also refer to an argument advanced by the assesses which was founded on S.of the Indian Companies Act, 1913, introduced by an amendment made in 1936, which provides that the remuneration of the managing agents of a company shall be a fixed percentage of its net annual profits, and that in calculating the net profits no deduction in respect of any tax or duty on income is to be made.It is said that the statute incorporates the universal commercial practice and therefore in construing the present agreement excess profits tax cannot beare not aware whether the section incorporates any practice but we think that this contention is entirely unfounded for the section was applied only to a managing agency agreement made after the amending Act came into force, while the agreement in the present case was made before that date.19. Lastly, we have to point out that nothing turns on the fact that at the date the agreement under consideration was made, Excess Profits Tax Act had not come on the statute book nor perhaps been thought of, and therefore could not have been in the contemplation of the parties. If the net profits are the divisible profits, everything necessary to be excluded to arrive at the divisible profits has to be deducted whether it was in the contemplation of the parties or not.It is easy to imagine instances. Suppose after the agreement the Government imposed a licence fee on the payment of which alone the business could have been carried on and that licence fee was not in the contemplation of the parties when the agreement had been made. None the less it has clearly to be deducted in finding out the divisible profits. In the result we would answer the question framed in the affirmative. | 1 | 4,007 | 1,026 | ### 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:
case.14. Nor do we think it necessary in the present case, as we have said earlier, to decide whether there are distinctions between income-tax and excess profits tax. We are not concerned with the question whether income-tax should be deducted before the net profits under the agreement can be ascertained. We will assume that it cannot be. It is common sense and also firmly established on the authorities to which reference has already been made, that in ascertaining the divisible profits excess profits tax has to be deducted. As we have construed the agreement in this case, net profits mean the divisible profits and therefore they can be arrived at only after deduction of excess profits tax.15. We wish now to refer to the minority opinions in the House of Lords in 1942-2 All ER 528 on which the High Court seems largely to have based its decision. The dissenting opinion of Viscount Simon L. C. arose from the fact that he did not think that the words profits in the agreement then before the House meant the divisible profits. With the reasons for this view we are not concerned for these turned on the wording of that agreement. Having held that the word profits did not mean the divisible profits, he proceeded to consider whether excess profits tax could be deducted in ascertaining the net profits and in doing so said that as income-tax could be deducted as held in the Ashton Gas Co. case, 1906 AC 10, neither could excess profits tax, for, both were parts of the profits. He also said that the Court of Appeal was wrong in thinking that excess profits tax could be debited to the profit and loss account and therefore held that the net profit which is usually shown in that account has to be ascertained without deducting excess profits tax. We are not concerned with this part of the opinion of the Lord Chancellor either. It was given on the basis that the profits were not the divisible profits and we are concerned only with divisible profits. The other dissentient speech was by Lord Macmillan. He said substantially what Viscount Simon had said, and therefore it is unnecessary to deal with his view separately. It does not however appear to us that the dissentient Judges in the House of Lords held that if the profits were the divisible profits, excess profits tax could not be deducted before these could be ascertained. In the view that we have taken of the agreement before us, we cannot, therefore, derive any assistance from the dissentient opinions.16. One other case, namely, N. M. Rayaloo Iyer and Sons v. Commr. of Income-tax, Madras, 1954-26 ITR 265 : ((S) AIR 1955 Mad 56 ), was brought to our attention. This case also purports to follow the reasoning adopted in the minority judgments in 1942-2 All ER 528 and actually relied on the authority of the judgment under appeal. It is therefore unnecessary to refer to it further.17. It had been contended by the learned advocate for the appellant that even it the net profits mentioned in the agreement were not the divisible profits and even if income-tax could not be deducted to ascertain these profits, excess profits tax was a proper deduction to be made. It was said that excess profits tax was for this purpose different in nature from income-tax, for, (a) under S. 12 of the Excess Profits Tax Act, 1940, excess profits tax was deductible as an expense for the purpose of income-tax assessment; (b) that where the employer is a company, as in the present case, the income-tax paid is refundable to the shareholders which excess profits tax is not; (c) that excess profits tax is a "debt of the business and therefore an outgoing, and (d) that it was in the nature of a licence fee upon the payment of which alone the business could be carried on. It is unnecessary to consider these points as in our view the net profits in this case were the divisible profits and whether excess profits tax is distinguishable from income-tax for any of these reasons or not, it is properly deductible.18. We should also refer to an argument advanced by the assesses which was founded on S. 87-C of the Indian Companies Act, 1913, introduced by an amendment made in 1936, which provides that the remuneration of the managing agents of a company shall be a fixed percentage of its net annual profits, and that in calculating the net profits no deduction in respect of any tax or duty on income is to be made.It is said that the statute incorporates the universal commercial practice and therefore in construing the present agreement excess profits tax cannot be deducted.We are not aware whether the section incorporates any practice but we think that this contention is entirely unfounded for the section was applied only to a managing agency agreement made after the amending Act came into force, while the agreement in the present case was made before that date.19. Lastly, we have to point out that nothing turns on the fact that at the date the agreement under consideration was made, Excess Profits Tax Act had not come on the statute book nor perhaps been thought of, and therefore could not have been in the contemplation of the parties. If the net profits are the divisible profits, everything necessary to be excluded to arrive at the divisible profits has to be deducted whether it was in the contemplation of the parties or not.It is easy to imagine instances. Suppose after the agreement the Government imposed a licence fee on the payment of which alone the business could have been carried on and that licence fee was not in the contemplation of the parties when the agreement had been made. None the less it has clearly to be deducted in finding out the divisible profits. In the result we would answer the question framed in the affirmative.
### Response:
1
### Explanation:
The agreement is that "the net profits will be arrived at after allowing the working expenses, interest on loans and due depreciation but without setting aside anything to reserves or special funds." We can leave out the things expressly made not deductible for as to these no question arises, the question being whether something more, namely, excess profits tax, can be deducted. Working expenses, interest on loans and due depreciation have however been expressly made deductible in ascertaining the net profits. If these are all the deductions that can be made, excess profits tax cannot be deducted for it does not come under any one of them. But it seems to us that the agreement was not intended to lay down all the deductions that can be made. It is not in dispute that expenses like overhead expenses, litigation expenses and similar other expenses properly incurred for carrying on the business can be deducted in arriving at the net profits. These would not be included within "working expenses" for that expression is usually understood as referring to expenses debitable to the trading account as having been incurred directly in making the income shown there. If this were not the sense in which the expression "working expenses" was used and it was meant to cover all revenue expenses incurred, then there would have been no need to mention, interest on loans and depreciation, separately for these latter would have been included as revenue expenses in the expression "working expenses". We are therefore inclined to think that there are other items besides those expressly mentioned, which have to be deducted before the net profits can be arrivedother words, they are the divisible profits of the company, divisible that is to say, between the master and the servant. In order that the divisible profits can be ascertained, excess profits tax has of course to be deducted. As to that there does not seem to be any doubt, for, that part of the profits which is taken away by the State as excess profits tax, is not available either to the master or the servant and cannot therefore be divided betweenwe do not refer to these judgments as supporting anything that we say but because the High Court unwittingly fell into the error of thinking that the Walchand and Co. Ltd. case (AIR 1944 Bom 5 ) came before the James Finlay and Co. Ltd. case (47 Bom LR 774) and that in the later case Beaumont C. J. had doubted the correctness of what he had said in the former. These observations are wholly wrong because, the James Finlay and Co. Ltd. case (47 Bom LR 774) was decided long before the Walchand and Co. Ltd.. case (AIR 1944 Bom 5 ) had been decided. Neither do we find that there is any conflict between the two cases. In the Walchand and Co. Ltd. case (AIR 1944 Bom 5 ), Beaumont C. J. gave reasons for making a distinction betweenand excess profits tax and thought that the distinction between them made in the English cases to which we have referred, was not of substance. We do not think it necessary to say anything as to whether Beaumont C. J. was right in this view.Now it seems to us that there is nothing in the Ashton Gas Co. case, 1906 AC 10 which prevents us from holding that in ascertaining the net profits for the purpose of the agreement that is before us, excess profits tax has to be excluded. That was not a case of profit sharing. It was not concentred with deciding what sums are deductible in arriving at the divisible profits in a profit sharing agreement. That is what we have to decide. Therefore we think that the Ashton Gas Co. case, 1906 AC 10 does not assist in answering the question that has arisen in this case.e should also refer to an argument advanced by the assesses which was founded on S.of the Indian Companies Act, 1913, introduced by an amendment made in 1936, which provides that the remuneration of the managing agents of a company shall be a fixed percentage of its net annual profits, and that in calculating the net profits no deduction in respect of any tax or duty on income is to be made.It is said that the statute incorporates the universal commercial practice and therefore in construing the present agreement excess profits tax cannot beare not aware whether the section incorporates any practice but we think that this contention is entirely unfounded for the section was applied only to a managing agency agreement made after the amending Act came into force, while the agreement in the present case was made before that date.19. Lastly, we have to point out that nothing turns on the fact that at the date the agreement under consideration was made, Excess Profits Tax Act had not come on the statute book nor perhaps been thought of, and therefore could not have been in the contemplation of the parties. If the net profits are the divisible profits, everything necessary to be excluded to arrive at the divisible profits has to be deducted whether it was in the contemplation of the parties or not.It is easy to imagine instances. Suppose after the agreement the Government imposed a licence fee on the payment of which alone the business could have been carried on and that licence fee was not in the contemplation of the parties when the agreement had been made. None the less it has clearly to be deducted in finding out the divisible profits. In the result we would answer the question framed in the affirmative.
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State Of Mysore Vs. Guduthur Thimmappa & Son, & Anr | completed not within the State, but outside at the places to which the goods were consigned for delivery to the various parties.We are unable to accept this submission. It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrier. 5. In this connection, a question also rose whether the sales by the respondents to those non-resident parties were sales in he course of inter-State trade. What are the sales in the course of inter-State trade was explained by this Court in Tata Iron and Steel Co., Ltd., Bombay v. S. R. Sarkar,(196l) 1 SCR 379 : (AIR l961 SC 65), where Cls. (a) and (b) of S. 3 of the Central Sales Tax Act, 1956 were interpreted 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 C1. (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." The nature of transactions found by the Tribunal in the cases before us shows that property in the cotton bales sold by the respondents did not pass during the movement of goods from one State to another by transfer of documents of title, and, further, that the movement of goods from the Madras area to places outside the State was not the result of any covenant or incident of the contract of sale. The contract of sale was completely carried through within the Madras area itself, in which area the price was received by the respondents and the cotton bales were delivered to the buyers. The movement of the cotton bales outside the State was by the buyers themselves after property in them had passed to them, so that these sales were not sales in the course of inter-State trade. 6. We now come to the second and the main point which was urged before us by learned counsel for the appellant. The submission of learned counsel was that a buyer, who was not resident within the area to which the Act applied, could not be held to be the last dealer for purposes of R. 4-A (iv) (b) of the Rules. According to him, it is the situs of the seller and the buyer which determines the applicability of this Rule, and not the situs of the sale of cotton itself. We are unable to accept this submission. The language of the Rule is clear that the tax is to be levied from the dealer who buys it in the State and is the last dealer not exempt from taxation. The test laid down thus is as to who buys it in the State and not who is in the State for purposes of buying the cotton. The Mills outside the State were no doubt carrying on their main business of manufacture of yarn or cloth outside the State; but so far as the act of purchase of these cotton bales was concerned, it was carried out by them within the State. It is to be noticed that in the Rule the expression used is "the dealer who buys it in the State and is the last dealer not exempt from taxation". If the intention had been that the location of the buyer himself should be the criterion for imposing tax on him, the language used in the Rule would have been quite different. It could easily have been laid down that the tax will be levied from the dealer in the State who buys it as the last dealer not exempt from taxation. The expression as used in the Rule makes it perfectly clear that the location of the dealer himself is immaterial. The liability to be taxed attaches if the purchase itself by the dealer is within the State. In the case of the sales in question, therefore, the buyers who purchased the cotton bales from the respondents were the last dealers who bought those cotton bales in the State and the single point tax under S. 5 (2) of the Act had to be levied from them and not from the respondents. 7. In this connection, an alternative argument was also raised for the first time by learned counsel for the appellant that those outside buyers could not be held to be dealers carrying on the business of purchase in the State, and if they were not dealers, the purchases by them had to be ignored, so that the last buyers in the State would be the respondents, because their purchases would be the last purchases by dealers made when they acquired these cotton bales subsequently sold by them. This contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC 531. Consequently, this ground raised has also no force. | 0[ds]It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrierThe nature of transactions found by the Tribunal in the cases before us shows that property in the cotton bales sold by the respondents did not pass during the movement of goods from one State to another by transfer of documents of title, and, further, that the movement of goods from the Madras area to places outside the State was not the result of any covenant or incident of the contract of sale. The contract of sale was completely carried through within the Madras area itself, in which area the price was received by the respondents and the cotton bales were delivered to the buyers. The movement of the cotton bales outside the State was by the buyers themselves after property in them had passed to them, so that these sales were not sales in the course of inter-State tradeThe language of the Rule is clear that the tax is to be levied from the dealer who buys it in the State and is the last dealer not exempt from taxation. The test laid down thus is as to who buys it in the State and not who is in the State for purposes of buying the cotton. The Mills outside the State were no doubt carrying on their main business of manufacture of yarn or cloth outside the State; but so far as the act of purchase of these cotton bales was concerned, it was carried out by them within the State. It is to be noticed that in the Rule the expression used is "the dealer who buys it in the State and is the last dealer not exempt from taxation". If the intention had been that the location of the buyer himself should be the criterion for imposing tax on him, the language used in the Rule would have been quite different. It could easily have been laid down that the tax will be levied from the dealer in the State who buys it as the last dealer not exempt from taxation. The expression as used in the Rule makes it perfectly clear that the location of the dealer himself is immaterial. The liability to be taxed attaches if the purchase itself by the dealer is within the State. In the case of the sales in question, therefore, the buyers who purchased the cotton bales from the respondents were the last dealers who bought those cotton bales in the State and the single point tax under S. 5 (2) of the Act had to be levied from them and not from the respondentsThis contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC 5314. The course of transactions found by the Tribunal, reproduced above, led the Tribunal and the High Court to the finding that the situs of the sales by the respondents to thet parties was in Bellary where the sales were completed and delivery also took placeWe are unable to accept this submission.It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrierWe are unable to accept this submissionThis contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC. Consequently, this ground raised has also no force. | 0 | 2,334 | 920 | ### 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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completed not within the State, but outside at the places to which the goods were consigned for delivery to the various parties.We are unable to accept this submission. It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrier. 5. In this connection, a question also rose whether the sales by the respondents to those non-resident parties were sales in he course of inter-State trade. What are the sales in the course of inter-State trade was explained by this Court in Tata Iron and Steel Co., Ltd., Bombay v. S. R. Sarkar,(196l) 1 SCR 379 : (AIR l961 SC 65), where Cls. (a) and (b) of S. 3 of the Central Sales Tax Act, 1956 were interpreted 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 C1. (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." The nature of transactions found by the Tribunal in the cases before us shows that property in the cotton bales sold by the respondents did not pass during the movement of goods from one State to another by transfer of documents of title, and, further, that the movement of goods from the Madras area to places outside the State was not the result of any covenant or incident of the contract of sale. The contract of sale was completely carried through within the Madras area itself, in which area the price was received by the respondents and the cotton bales were delivered to the buyers. The movement of the cotton bales outside the State was by the buyers themselves after property in them had passed to them, so that these sales were not sales in the course of inter-State trade. 6. We now come to the second and the main point which was urged before us by learned counsel for the appellant. The submission of learned counsel was that a buyer, who was not resident within the area to which the Act applied, could not be held to be the last dealer for purposes of R. 4-A (iv) (b) of the Rules. According to him, it is the situs of the seller and the buyer which determines the applicability of this Rule, and not the situs of the sale of cotton itself. We are unable to accept this submission. The language of the Rule is clear that the tax is to be levied from the dealer who buys it in the State and is the last dealer not exempt from taxation. The test laid down thus is as to who buys it in the State and not who is in the State for purposes of buying the cotton. The Mills outside the State were no doubt carrying on their main business of manufacture of yarn or cloth outside the State; but so far as the act of purchase of these cotton bales was concerned, it was carried out by them within the State. It is to be noticed that in the Rule the expression used is "the dealer who buys it in the State and is the last dealer not exempt from taxation". If the intention had been that the location of the buyer himself should be the criterion for imposing tax on him, the language used in the Rule would have been quite different. It could easily have been laid down that the tax will be levied from the dealer in the State who buys it as the last dealer not exempt from taxation. The expression as used in the Rule makes it perfectly clear that the location of the dealer himself is immaterial. The liability to be taxed attaches if the purchase itself by the dealer is within the State. In the case of the sales in question, therefore, the buyers who purchased the cotton bales from the respondents were the last dealers who bought those cotton bales in the State and the single point tax under S. 5 (2) of the Act had to be levied from them and not from the respondents. 7. In this connection, an alternative argument was also raised for the first time by learned counsel for the appellant that those outside buyers could not be held to be dealers carrying on the business of purchase in the State, and if they were not dealers, the purchases by them had to be ignored, so that the last buyers in the State would be the respondents, because their purchases would be the last purchases by dealers made when they acquired these cotton bales subsequently sold by them. This contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC 531. Consequently, this ground raised has also no force.
### Response:
0
### Explanation:
It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrierThe nature of transactions found by the Tribunal in the cases before us shows that property in the cotton bales sold by the respondents did not pass during the movement of goods from one State to another by transfer of documents of title, and, further, that the movement of goods from the Madras area to places outside the State was not the result of any covenant or incident of the contract of sale. The contract of sale was completely carried through within the Madras area itself, in which area the price was received by the respondents and the cotton bales were delivered to the buyers. The movement of the cotton bales outside the State was by the buyers themselves after property in them had passed to them, so that these sales were not sales in the course of inter-State tradeThe language of the Rule is clear that the tax is to be levied from the dealer who buys it in the State and is the last dealer not exempt from taxation. The test laid down thus is as to who buys it in the State and not who is in the State for purposes of buying the cotton. The Mills outside the State were no doubt carrying on their main business of manufacture of yarn or cloth outside the State; but so far as the act of purchase of these cotton bales was concerned, it was carried out by them within the State. It is to be noticed that in the Rule the expression used is "the dealer who buys it in the State and is the last dealer not exempt from taxation". If the intention had been that the location of the buyer himself should be the criterion for imposing tax on him, the language used in the Rule would have been quite different. It could easily have been laid down that the tax will be levied from the dealer in the State who buys it as the last dealer not exempt from taxation. The expression as used in the Rule makes it perfectly clear that the location of the dealer himself is immaterial. The liability to be taxed attaches if the purchase itself by the dealer is within the State. In the case of the sales in question, therefore, the buyers who purchased the cotton bales from the respondents were the last dealers who bought those cotton bales in the State and the single point tax under S. 5 (2) of the Act had to be levied from them and not from the respondentsThis contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC 5314. The course of transactions found by the Tribunal, reproduced above, led the Tribunal and the High Court to the finding that the situs of the sales by the respondents to thet parties was in Bellary where the sales were completed and delivery also took placeWe are unable to accept this submission.It has been rightly held by the High Court that the common carrier took delivery as agent of the buyer and that delivery was within the State. There is the further circumstance that, during transit, the goods were insured by the buyers at their own cost, and not by the respondents. The buyers thus recognised that they were already the owners of the cotton bales as soon as they were given for transmission to the common carrierWe are unable to accept this submissionThis contention was not raised at any earlier stage before the Tribunal or the High Court, and it is, therefore, not open to the appellant to urge it before this Court for the first time. In any case, it is clear that the outside buyers were all mills which were purchasing cotton bales for use in their manufacturing process and such purchases by them would amount to purchases of raw materials for their business. Purchases of this nature have already been held by this Court to constitute the business of purchase by the buyers in State of Andhra Pradesh v. M/s. H. Abdul Bakhi and Bros., AIR l965 SC. Consequently, this ground raised has also no force.
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NIRMAL KUMAR PARSAN Vs. COMMR. COMMERCIAL TAX . AND ORS | We are unable to accept the contention of Mr Ramachandran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously contended, they had crossed into the territorial waters. Import being complete when the goods entered the territorial waters is the contention which has already been rejected by this Court in Union of India v. Apar (P) Ltd. decided on 22-7-1999. The import would be completed only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in Sea Customs case (SCR at p. 823) as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and not on the date when the goods had landed in India or had entered the territorial waters, we find that on the date of the taxable event the additional duty of excise was leviable under the said Ordinance and, therefore, additional duty under Section 3 of the Tariff Act was rightly demanded from the appellants. (emphasis supplied) 20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import. 21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. 22. A Constitution Bench of this Court in Md. Serajuddin and Ors. vs. State of Orissa (1975) 2 SCC 47 has held that expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. The relevant portion of the judgment is extracted as under: 18. ….. A sale in the course of export predicates a connection between the sale and export. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But it does not mean that distinction between transactions which may be called sales for export and sales in the course of export is not real. Where the sale is effected by the seller and the seller is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with sale so that the bond cannot be dissociated without a breach of the obligations arising by statute, contract, or mutual understanding between the parties arising from the nature of the transaction the sale is in the course of export. In the Nilgiri Plantations case (supra) this Court found that the sales by the appellants were intended to be complete without the export and as such it could not be said that the sales occasioned export. The sales were for export and not in the course of export. (emphasis supplied) 23. It is relevant to advert to the definition of export here. Section 2(18) of the Customs Act defines export as follows: 2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (18) - export, with its grammatical variations and cognate expressions, means taking out of India to a place outside India. (emphasis supplied) 24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act. 25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area. 26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court. | 0[ds]10. As noticed from the finding of fact recorded by the authorities, it is not in dispute that after importing the stated goods, the appellants stored the same in the bonded warehouse within the land-mass of the State of West Bengal and some of the articles were then sold to the Master of a foreign-going ship as ship stores, without payment of customs duty thereonThe phrase sale in the course of import would constitute three essential features – (i) that there must be a sale; (ii) that goods must actually be imported and (iii) that the sale must be part and parcel of the import. The factual matrix in the present case clearly depicts that the sales in question would not cause import of the stated goods. Instead, it would result in taking away the goods (after being unloaded on the land-mass of the State of West Bengal) on the ongoing ship as ship stores outside the territory of Indian Waters for being consumed on the ship and not for export to another destination as such. The appellants have advisedly not pursued the argument that the stated sales would result in an export or would be in the course of export. For, such argument has been rejected by this Court in Madras Marine (supra)12. Applying the principle underlying the said decision, it is clear that the sale to be in the course of import, must be a sale of goods and as a consequence of such sale, the goods must actually be imported within the territory of India and further, the sale must be part and parcel of the import so as to occasion import thereof. Indeed, for the purposes of Customs Act, only upon payment of customs duty the goods are cleared by the Customs authorities whence import thereof can be regarded as complete. However, that would be no impediment for levy of sales tax by the State concerned in whose territory the goods had already landed/unloaded and kept in the bonded warehouse. For seeking exemption, it is necessary that the goods must be in the process of being imported when the sale occurs or the sale must occasion the import thereof within the territory of India. The word occasion is used to mean to cause or to be the immediate cause of. In the present case, the stated sales in no way occasioned import of the goods into the territory of India. For, the goods were taken away by the foreign-going ship as ship stores for being consumed after the goods had crossed the customs frontiers/Indian Waters13. Indubitably, the sale which is to be regarded as exempt from payment of sales tax, is a sale which causes the import to take place or is the immediate cause of the import of goods. The appellants having failed to establish that the stated goods would be actually imported within the territory of India and had not crossed the customs station, cannot contend that the sale was in the course of import as such within the meaning of Section 5 read with Section 2(ab) of the CST Act. Moreover, there is no direct linkage between the import of the goods and the sale in question to qualify as having been made in the process or progress of importWe have no hesitation in accepting the argument of the respondents that being a taxation statute, strict interpretation of these provisions is inevitable. Going by the definition of customs port or land customs station as applicable in the present cases, it is customs port or land customs station area appointed by the Central Government in terms of notification under Section 7. It is not the case of the appellants that the bonded warehouses, where the goods were kept and the stated sales took place by appropriation of the goods thereat, were within the area notified as customs port and/or land customs station under Section 7 of the Customs Act. As the stated goods had travelled beyond the customs port/land customs station at the relevant time, in law, it would mean that the goods had crossed the customs frontiers of India for the purposes of the CST Act. Resultantly, the legal fiction created in Section 5(2) of the CST Act will have no application15. Notably, the expressions warehouse and warehoused goods have been defined in the Customs Act in Sections 2(43) and 2(44) respectively. As per the applicable provisions at the relevant time, Warehouse means a public warehouse appointed under Section 57 or a private warehouse licensed under Section 58. Warehoused goods means goods deposited in a warehouse. As aforesaid, there is nothing to indicate that the bonded warehouse, where the stated goods were kept by the appellants and eventually sold, formed part of the customs port/land customs station. If so, the legal fiction of sale being deemed to have taken place in the course of import of the goods into the territory of India would have no bearing and applicability to the present cases16. To get over this position, emphasis was placed by the appellant on the exposition in the Indian Tourist Development Corporation (supra), which had considered the situation where the goods were kept in the bonded warehouse and were made available in the duty- free shops for sale. This Court opined that since the goods were supplied to the duty-free shops situated at the International Airport, Bengaluru for sale, it cannot be said that the said goods had crossed the customs frontiers of India. We fail to understand as to how this decision will be of any avail to the appellants. For, the Court was not dealing with a situation as in the present cases, in which the goods had crossed the customs port/land customs station area and kept in the bonded warehouse, where the sale by appropriation of the goods was effected. Indeed, in paragraph 17 of the reported decision, the Court in the facts of that case, has observed that when the goods are kept in the bonded warehouse, it cannot be said that the said goods had crossed customs frontiers of India. However, the Court finally answered the claim of the appellants therein on the finding that the liquor, cigarettes, perfumes and food articles were sold at the duty- free shops at the International Airport, Bengaluru, for which no tax was payable by the appellants as the goods sold at the duty-free shops were sold directly to the passengers and even the delivery of goods took place at the duty-free shops before importing the goods or before the goods had crossed the customs frontiers of India. The issue considered in the said decision, therefore, was whether the sale at the duty-free shops situated at the Bengaluru International Airport would attract levy of sales tax. As noticed earlier, the definition of customs station clearly refers to customs airport as defined in Section 2(10) of the Customs Act. As the duty-free shop is situated in airport area, it would mean that the sale of goods at the duty-free shops was deemed to have taken place in the course of import of the goods into the territory of India. Thus understood, the reported decision under consideration is of no avail to the appellants17. Even the exposition of the Constitution Bench in J.V. Gokal (supra) that a sale by an importer of goods after the property of the goods passed to him, either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course of import, would equally have no bearing on the present cases. Inasmuch as, the sale of goods must take place before the goods had crossed the customs frontiers of India, which means it was within the customs port/land customs station area. Nothing is shown by the appellants herein to substantiate that the subject bonded warehouse came within the customs port/land customs station area and moreso the stated sales occasioned import of the goods within the territory of India. If so, the finding of fact and conclusion recorded by the authorities below, which commended to the High Court, is unexceptionable20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court. | 0 | 9,778 | 2,041 | ### 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:
We are unable to accept the contention of Mr Ramachandran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously contended, they had crossed into the territorial waters. Import being complete when the goods entered the territorial waters is the contention which has already been rejected by this Court in Union of India v. Apar (P) Ltd. decided on 22-7-1999. The import would be completed only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in Sea Customs case (SCR at p. 823) as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and not on the date when the goods had landed in India or had entered the territorial waters, we find that on the date of the taxable event the additional duty of excise was leviable under the said Ordinance and, therefore, additional duty under Section 3 of the Tariff Act was rightly demanded from the appellants. (emphasis supplied) 20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import. 21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. 22. A Constitution Bench of this Court in Md. Serajuddin and Ors. vs. State of Orissa (1975) 2 SCC 47 has held that expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. The relevant portion of the judgment is extracted as under: 18. ….. A sale in the course of export predicates a connection between the sale and export. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But it does not mean that distinction between transactions which may be called sales for export and sales in the course of export is not real. Where the sale is effected by the seller and the seller is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with sale so that the bond cannot be dissociated without a breach of the obligations arising by statute, contract, or mutual understanding between the parties arising from the nature of the transaction the sale is in the course of export. In the Nilgiri Plantations case (supra) this Court found that the sales by the appellants were intended to be complete without the export and as such it could not be said that the sales occasioned export. The sales were for export and not in the course of export. (emphasis supplied) 23. It is relevant to advert to the definition of export here. Section 2(18) of the Customs Act defines export as follows: 2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (18) - export, with its grammatical variations and cognate expressions, means taking out of India to a place outside India. (emphasis supplied) 24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act. 25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area. 26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court.
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0
### Explanation:
Tourist Development Corporation (supra), which had considered the situation where the goods were kept in the bonded warehouse and were made available in the duty- free shops for sale. This Court opined that since the goods were supplied to the duty-free shops situated at the International Airport, Bengaluru for sale, it cannot be said that the said goods had crossed the customs frontiers of India. We fail to understand as to how this decision will be of any avail to the appellants. For, the Court was not dealing with a situation as in the present cases, in which the goods had crossed the customs port/land customs station area and kept in the bonded warehouse, where the sale by appropriation of the goods was effected. Indeed, in paragraph 17 of the reported decision, the Court in the facts of that case, has observed that when the goods are kept in the bonded warehouse, it cannot be said that the said goods had crossed customs frontiers of India. However, the Court finally answered the claim of the appellants therein on the finding that the liquor, cigarettes, perfumes and food articles were sold at the duty- free shops at the International Airport, Bengaluru, for which no tax was payable by the appellants as the goods sold at the duty-free shops were sold directly to the passengers and even the delivery of goods took place at the duty-free shops before importing the goods or before the goods had crossed the customs frontiers of India. The issue considered in the said decision, therefore, was whether the sale at the duty-free shops situated at the Bengaluru International Airport would attract levy of sales tax. As noticed earlier, the definition of customs station clearly refers to customs airport as defined in Section 2(10) of the Customs Act. As the duty-free shop is situated in airport area, it would mean that the sale of goods at the duty-free shops was deemed to have taken place in the course of import of the goods into the territory of India. Thus understood, the reported decision under consideration is of no avail to the appellants17. Even the exposition of the Constitution Bench in J.V. Gokal (supra) that a sale by an importer of goods after the property of the goods passed to him, either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course of import, would equally have no bearing on the present cases. Inasmuch as, the sale of goods must take place before the goods had crossed the customs frontiers of India, which means it was within the customs port/land customs station area. Nothing is shown by the appellants herein to substantiate that the subject bonded warehouse came within the customs port/land customs station area and moreso the stated sales occasioned import of the goods within the territory of India. If so, the finding of fact and conclusion recorded by the authorities below, which commended to the High Court, is unexceptionable20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court.
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New India Assurance Co.Ltd Vs. Roshanben Rahemansha Fakir | he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under subsection (2) of section 75] unless his driving licence specifically entitles him so to do.(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government." 10. Section 10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the Motor Vehicles Act. The `transport vehicle is defined in Section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.05.2004 to 12.05.2024. Section 14(2)(a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle. 11. The same is also borne out from the licence in question. The attention of the High Court, however, was not drawn to these aspects of the matter. The learned Tribunal also, in its judgment dated 5.5.2006 noticed the facts in the following terms : "When they were proceeding on road on foot and reached near Fire brigade, a rickshaw bearing No.GRP 5432 with closed body came in fast speed, rashly and negligently from behind and dashed with the complainant Ikbala and deceased Mahamadsha as a result of which both of them fell down, sustained injuries, deceased sustained serious injuries on his head and other parts of the body, and during the course of treatment he succumbed to the injuries." 12. From the discussions made hereinbefore, it is evident that the driver of the vehicle was not holding an effective licence. Possession of an effective licence is necessary in terms of Section 10 of the Motor Vehicles Act. 13. In National Insurance Co. Ltd. v. Swaran Singh and Ors. [(2004) 3 SCC 297] , this Court opined : "89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. The said decision has been considered by this Court in Kusum Rai (supra)." 14. In National Insurance Company Ltd. v. Annappa Irappa Nesaria and Ors. [(2008) 1 SCALE 642] , it was noticed that the provisions of the Act have undergone a change. The definition of `light motor vehicle would not include a light transport vehicle. In that case, keeping in view the date on which the accident took place, it was held: "From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for `medium goods vehicle and `heavy goods vehicle. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well." | 1[ds]10. Section 10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the Motor Vehicles Act. The `transport vehicle is defined in Section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.05.2004 to 12.05.2024. Section 14(2)(a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle.From the discussions made hereinbefore, it is evident that the driver of the vehicle was not holding an effective licence. Possession of an effective licence is necessary in terms of Section 10 of the Motor Vehicles Act. | 1 | 2,175 | 311 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under subsection (2) of section 75] unless his driving licence specifically entitles him so to do.(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government." 10. Section 10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the Motor Vehicles Act. The `transport vehicle is defined in Section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.05.2004 to 12.05.2024. Section 14(2)(a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle. 11. The same is also borne out from the licence in question. The attention of the High Court, however, was not drawn to these aspects of the matter. The learned Tribunal also, in its judgment dated 5.5.2006 noticed the facts in the following terms : "When they were proceeding on road on foot and reached near Fire brigade, a rickshaw bearing No.GRP 5432 with closed body came in fast speed, rashly and negligently from behind and dashed with the complainant Ikbala and deceased Mahamadsha as a result of which both of them fell down, sustained injuries, deceased sustained serious injuries on his head and other parts of the body, and during the course of treatment he succumbed to the injuries." 12. From the discussions made hereinbefore, it is evident that the driver of the vehicle was not holding an effective licence. Possession of an effective licence is necessary in terms of Section 10 of the Motor Vehicles Act. 13. In National Insurance Co. Ltd. v. Swaran Singh and Ors. [(2004) 3 SCC 297] , this Court opined : "89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. The said decision has been considered by this Court in Kusum Rai (supra)." 14. In National Insurance Company Ltd. v. Annappa Irappa Nesaria and Ors. [(2008) 1 SCALE 642] , it was noticed that the provisions of the Act have undergone a change. The definition of `light motor vehicle would not include a light transport vehicle. In that case, keeping in view the date on which the accident took place, it was held: "From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for `medium goods vehicle and `heavy goods vehicle. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
### Response:
1
### Explanation:
10. Section 10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the Motor Vehicles Act. The `transport vehicle is defined in Section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.05.2004 to 12.05.2024. Section 14(2)(a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle.From the discussions made hereinbefore, it is evident that the driver of the vehicle was not holding an effective licence. Possession of an effective licence is necessary in terms of Section 10 of the Motor Vehicles Act.
|
HARBHAJAN SINGH Vs. STATE OF PUNJAB | of lease and the provisions of the Transfer of Property Act stood superseded. At the same time, the Rent Control Acts provided the facilities of eviction to the landlord on certain specified grounds like bona fide personal necessity or default in payment of rent, etc. Thus any right that the tenant possessed after the expiry of the lease was conferred on him only by virtue of the Rent Control Act. It is, therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the common law. 22. Thus, we do not see how can the tenant challenge the validity of such a provision enacted by the legislature from which the tenant itself derived such rights. 17. Similar are the observations of this Court in Ravi Dutt Sharma (supra) which had quoted several passages from Kewal Singh (supra) to observe that it is open to the legislature to pick out one class of landlords out of several covered under a specific provision of a rent enactment so long as they form a class by themselves and the legislature was free to provide benefit of a special procedure to them in the matter of eviction against the tenants as long as the legislation had the object to achieve and a special procedure has reasonable nexus to the object to be achieved. 18. In Ashoka Marketing Ltd. (supra), the five Judge Constitution Bench of this Court had upheld applicability of the Public Premises Act to a corporation established by a Central Act that is owned and controlled by the Central Government, therein a nationalised bank. After referring to several judgments, this Court had explained the effect of Article 14 of the Constitution observing that the two statutes, namely, the Rent Control Act and the Public Premises Act were enacted by the same legislature, that is, the Parliament, in exercise of powers for matters enumerated in the Concurrent List. The Public Premises Act being a later enactment would prevail over the provisions of the Rent Control Act in respect of public premises. Referring to the provisions of the Rent Control Act, it was observed: 55. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil Procedure, the Public Premises Act confers the power to pass an order of eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public Premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. 19. What has been said about the Public Premises Act would be equally applicable to the legislations made by the State legislature of the State of Punjab in respect of the two enactments under consideration, that is, the East Punjab Rent Act and the Religious Premises Act. No doubt, in this decision it has been observed that the underlying reason for exclusion of property belonging to the government from the ambit of the Rent Control Act is that the government while dealing with the citizens in respect of property belonging to it would not act as a private landlord but would act in public interest, albeit this reasoning would equally apply to religious institutions as defined. The religious institutions as held are meant to carry out public purpose and the legislature can proceed accordingly that the religious institutions would act in public interest for which they were established. See above S. Kandaswamy Chettiar (supra) and Christ the King Cathedral (supra) 20. As noticed above, valid grants, leases and allotments are not construed and treated as unauthorised occupation. It is only when the terms of the grant, lease or allotment are not adhered to or have been determined or the period of allotment, lease or grant as fixed has come to an end, that the person in occupation is treated to be in unauthorised occupation. This is a pre-condition which confers the right on the religious institution to seek eviction of a person in unauthorised occupation of the religious premises. Further, an order passed by the Collector is appealable before the Commissioner and if still aggrieved, a tenant can invoke the writ jurisdiction of the High Court, as mentioned above. Therefore, power of judicial review is always available and can be exercised by the High Court when required and necessary. | 0[ds]11. The issue of whether the properties of the religious institutions for the purpose of rent control legislations can be treated as a separate category is no longer res integra as this aspect was examined in several decisions where this Court has held that separate classification of properties of religious institutions for rent legislations will pass a challenge under Article 14 of the Constitution19. What has been said about the Public Premises Act would be equally applicable to the legislations made by the State legislature of the State of Punjab in respect of the two enactments under consideration, that is, the East Punjab Rent Act and the Religious Premises Act. No doubt, in this decision it has been observed that the underlying reason for exclusion of property belonging to the government from the ambit of the Rent Control Act is that the government while dealing with the citizens in respect of property belonging to it would not act as a private landlord but would act in public interest, albeit this reasoning would equally apply to religious institutions as defined. The religious institutions as held are meant to carry out public purpose and the legislature can proceed accordingly that the religious institutions would act in public interest for which they were established. See above S. Kandaswamy Chettiar (supra) and Christ the King Cathedral (supra)20. As noticed above, valid grants, leases and allotments are not construed and treated as unauthorised occupation. It is only when the terms of the grant, lease or allotment are not adhered to or have been determined or the period of allotment, lease or grant as fixed has come to an end, that the person in occupation is treated to be in unauthorised occupation. This is a pre-condition which confers the right on the religious institution to seek eviction of a person in unauthorised occupation of the religious premises. Further, an order passed by the Collector is appealable before the Commissioner and if still aggrieved, a tenant can invoke the writ jurisdiction of the High Court, as mentioned above. Therefore, power of judicial review is always available and can be exercised by the High Court when required and necessary. | 0 | 8,016 | 394 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
of lease and the provisions of the Transfer of Property Act stood superseded. At the same time, the Rent Control Acts provided the facilities of eviction to the landlord on certain specified grounds like bona fide personal necessity or default in payment of rent, etc. Thus any right that the tenant possessed after the expiry of the lease was conferred on him only by virtue of the Rent Control Act. It is, therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the common law. 22. Thus, we do not see how can the tenant challenge the validity of such a provision enacted by the legislature from which the tenant itself derived such rights. 17. Similar are the observations of this Court in Ravi Dutt Sharma (supra) which had quoted several passages from Kewal Singh (supra) to observe that it is open to the legislature to pick out one class of landlords out of several covered under a specific provision of a rent enactment so long as they form a class by themselves and the legislature was free to provide benefit of a special procedure to them in the matter of eviction against the tenants as long as the legislation had the object to achieve and a special procedure has reasonable nexus to the object to be achieved. 18. In Ashoka Marketing Ltd. (supra), the five Judge Constitution Bench of this Court had upheld applicability of the Public Premises Act to a corporation established by a Central Act that is owned and controlled by the Central Government, therein a nationalised bank. After referring to several judgments, this Court had explained the effect of Article 14 of the Constitution observing that the two statutes, namely, the Rent Control Act and the Public Premises Act were enacted by the same legislature, that is, the Parliament, in exercise of powers for matters enumerated in the Concurrent List. The Public Premises Act being a later enactment would prevail over the provisions of the Rent Control Act in respect of public premises. Referring to the provisions of the Rent Control Act, it was observed: 55. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil Procedure, the Public Premises Act confers the power to pass an order of eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public Premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. 19. What has been said about the Public Premises Act would be equally applicable to the legislations made by the State legislature of the State of Punjab in respect of the two enactments under consideration, that is, the East Punjab Rent Act and the Religious Premises Act. No doubt, in this decision it has been observed that the underlying reason for exclusion of property belonging to the government from the ambit of the Rent Control Act is that the government while dealing with the citizens in respect of property belonging to it would not act as a private landlord but would act in public interest, albeit this reasoning would equally apply to religious institutions as defined. The religious institutions as held are meant to carry out public purpose and the legislature can proceed accordingly that the religious institutions would act in public interest for which they were established. See above S. Kandaswamy Chettiar (supra) and Christ the King Cathedral (supra) 20. As noticed above, valid grants, leases and allotments are not construed and treated as unauthorised occupation. It is only when the terms of the grant, lease or allotment are not adhered to or have been determined or the period of allotment, lease or grant as fixed has come to an end, that the person in occupation is treated to be in unauthorised occupation. This is a pre-condition which confers the right on the religious institution to seek eviction of a person in unauthorised occupation of the religious premises. Further, an order passed by the Collector is appealable before the Commissioner and if still aggrieved, a tenant can invoke the writ jurisdiction of the High Court, as mentioned above. Therefore, power of judicial review is always available and can be exercised by the High Court when required and necessary.
### Response:
0
### Explanation:
11. The issue of whether the properties of the religious institutions for the purpose of rent control legislations can be treated as a separate category is no longer res integra as this aspect was examined in several decisions where this Court has held that separate classification of properties of religious institutions for rent legislations will pass a challenge under Article 14 of the Constitution19. What has been said about the Public Premises Act would be equally applicable to the legislations made by the State legislature of the State of Punjab in respect of the two enactments under consideration, that is, the East Punjab Rent Act and the Religious Premises Act. No doubt, in this decision it has been observed that the underlying reason for exclusion of property belonging to the government from the ambit of the Rent Control Act is that the government while dealing with the citizens in respect of property belonging to it would not act as a private landlord but would act in public interest, albeit this reasoning would equally apply to religious institutions as defined. The religious institutions as held are meant to carry out public purpose and the legislature can proceed accordingly that the religious institutions would act in public interest for which they were established. See above S. Kandaswamy Chettiar (supra) and Christ the King Cathedral (supra)20. As noticed above, valid grants, leases and allotments are not construed and treated as unauthorised occupation. It is only when the terms of the grant, lease or allotment are not adhered to or have been determined or the period of allotment, lease or grant as fixed has come to an end, that the person in occupation is treated to be in unauthorised occupation. This is a pre-condition which confers the right on the religious institution to seek eviction of a person in unauthorised occupation of the religious premises. Further, an order passed by the Collector is appealable before the Commissioner and if still aggrieved, a tenant can invoke the writ jurisdiction of the High Court, as mentioned above. Therefore, power of judicial review is always available and can be exercised by the High Court when required and necessary.
|
Innovatherm Gmbh & Another Vs. Sesa Goa Limited | had filed a petition under Sections 391-394 in the Calcutta High Court and in this context, learned Single Judge came to the conclusion that the Standard Chartered Bank being neither the shareholder, member and creditor of the transferee Company which was before the Court, had no locus to be heard in the said proceedings. Similar view has been taken by the Division Bench of this Court in the case of HindalcoIndustries Ltd in Company Petition No.293/2009 and connected Company Application No.234/2009. In the said case, The Company was Flagship Company of Aditya Birla Group. The Company proposed to undertake the financial restructuring exercise on the terms and conditions spelt out in the said proposed scheme and it was presented for approval under Section 391 read with Section 100 of the Companies Act. An objection was raised by one Ram Niranjan Kediya of Tourism Service Private Ltd. He was admittedly neither shareholder nor creditor of the petitioner Company. The question before the Court was whether he had any locus to raise any objection in relation to scheme propounded by the Company under Section 391 of the Companies Act and in that context, the Division Bench had observed that the said intervenor neither being the member or creditor of the Company, had no locus to intervene in the said petition. Learned Counsel for the appellants had vehemently urged that the facts of the said case were different since it was a petition filed under Section 100 of the Companies Act for financial restructuring and, therefore, the ratio of the said judgment does not apply to the facts of the present case. We are unable to accept the said contention of learned Counsel. The issue involved in the said case was identical and the question was whether any exercise which has to be carried out by the Company for restructuring as contemplated under Section 100 whether the intervenor, who was neither shareholder or creditor, can intervene and in such context, therefore, the Court had held that the said person had no locus. The ratio of the said case squarely applies to the present case.17. The Division Bench of this Court in the case of Securities and Exchange Board of India (SEBI) Vs. Sterlite Industries (India) Ltd. Reported in (2003) 113 Comp Cases 273(Bom.) also held that SEBI who had filed an application for intervention had no locus in the petition under Section 391 of the Companies Act not being shareholder or creditor of the Company. In the said case, it was contended that SEBI had interest in the said petition. The Division Bench however, did not accept the said contention and submitted that at the highest notice can be issued only to Central Government under Section 394-A and SEBI could not claim to have any locus in the said application under Section 391 of the Companies Act. In our view, the ratio of the said judgment would also directly apply to the facts of the present case.18. Delhi High Court in two separate judgments, namely in Company Petition No.54/1980 and Re: Telesound India Pvt Ltd (supra) has also taken a similar view and has observed that there is no provision of notice to creditors of the transferor Company at any stage either prior to making of the order or subsequent thereto except insofar as the creditors may have notice of it by public advertisement. Similarly, Delhi High Court in Union of India Vs. Asia Udyog Pvt Ltd (supra) has observed that such creditors of transferee Company would have no locus in the scheme of amalgamation filed by the transferor Company.19. It was also contended that in view of the provisions of Order I, Rule 10(2) of C.P.C. since the party whose rights are adversely affected is necessary party in a suit, on the same analogy the appellants being adversely affected by the order of acceptance of the scheme had right to hear in this petition. Reliance was placed on the judgment of the Apex Court in the case of RameshHirachand Kundanmal (supra). In our view, it will not be possible to draw the same analogy as is tried to be drawn on the basis of the provisions of Order I, Rule 10(2) of C.P.C. and consequently, the ratio of the said judgment cannot be made applicable to the facts of the present case.20. Reliance was placed on two judgments of learned Single Judge of this Court in the matter of ICICI Bank Limited and in the matter of Mayfair Limited (supra). In both these petitions, learned Single Judge has come to the conclusion that the creditor of the transferor Company would equally have right to file his objection to the scheme which is not just and fair to him or to the class of creditors to whom he belongs. In our view, we respectfully disagree with the view taken by learned Single Judge since the provision of Section 391 of the Companies Act cannot be extended to such extent that even third parties namely those persons who are not shareholders or creditors of the Company can be allowed to intervene in such petitions filed under Section 391 of the Companies Act. It is an admitted position that the appellants who are the creditors of transferee Company namely VAL, the demerged Company were duly heard in the petition filed by the said Company in the Madras High Court for getting their scheme sanctioned and the judgment of the Madras High Court is awaited. If the objection raised by the appellants in the said Court is accepted and the scheme is not approved by the Madras High Court, then, the entire scheme will fail and as such, it cannot be said that there is violation of principles of natural justice. We are, therefore, unable to accept the view taken by learned Single Judge in the said two decisions and overrule the said judgments.21. In our view, therefore, there is no merit in the contention raised by the learned Counsel appearing on behalf of the appellants. | 0[ds]The restrictions, therefore, imposed on the category of person referred to in subsection (1)(a) and (b) of Section 391 of the Companies Act is not found in(2) of Section 392 of the Companies Act. Keeping in view the aforesaid provision, therefore, the rival contentions will have to be taken into consideration.12. In the present case, since the transferee Company is having its registered office at Madras, the petition was filed in the Madras High Court by the transferee Company and in the said petition, the appellants being the creditors of the transferee Company were duly heard and judgment has now been reserved by the Madras High Court onview of this, the final order passed in both the Courts would be dependent on both the transferor and transferee Company obtaining necessary sanction from the Court of competent jurisdiction. Even if one Court refuses to sanction the scheme, the entire scheme resultantly wouldguidelines, therefore, which are laid down by the Apex Court pertain to the power of the Court in taking into consideration the scheme not only from the point of view of majority shareholders or creditors but also from the point of view of minority shareholders and creditors. The submission made by learned Counsel appearing on behalf of the appellants, therefore, cannot be accepted and the ratio of this judgment of the Apex Court in the said case, is not of any assistance to thethe present case, the appellants are neither the shareholders nor creditors of the transferor Company and as such, the question of permitting them to intervene in the transferors petition filed under Section 391 of the Companies Act, does notour view, the ratio of the said judgment does not advance the case of the appellants any further in the facts and circumstances of the present case. Inthe present case, the appellants are neither the shareholders nor creditors of the transferor Company and as such, the question of permitting them to intervene in the transferors petition filed under Section 391 of the Companies Act, does notis not possible to accept the said submission. As we have pointed out hereinabove, the judgment in the case of MiheerMafatlal (supra) does not in any way apply to the creditors of the transferee Company and it does not lay down the ratio that the creditor of transferee Company would also have right to intervene in the petition filed by the transferor Company. Secondly, in the case of National Textiles Workmen Union (supra), the issue involved was regarding the workmen of the Company who had filed winding up petition and in that context, therefore, the Supreme Court held that the workers of the said Company would be adversely affected and, therefore, they had right and locus to intervene in the said winding upare unable to accept the said contention of learned Counsel. The issue involved in the said case was identical and the question was whether any exercise which has to be carried out by the Company for restructuring as contemplated under Section 100 whether the intervenor, who was neither shareholder or creditor, can intervene and in such context, therefore, the Court had held that the said person had no locus. The ratio of the said case squarely applies to the presentthe said case, it was contended that SEBI had interest in the said petition. The Division Bench however, did not accept the said contention and submitted that at the highest notice can be issued only to Central Government under Sectionand SEBI could not claim to have any locus in the said application under Section 391 of the Companies Act. In our view, the ratio of the said judgment would also directly apply to the facts of the presentour view, it will not be possible to draw the same analogy as is tried to be drawn on the basis of the provisions of Order I, Rule 10(2) of C.P.C. and consequently, the ratio of the said judgment cannot be made applicable to the facts of the presentour view, we respectfully disagree with the view taken by learned Single Judge since the provision of Section 391 of the Companies Act cannot be extended to such extent that even third parties namely those persons who are not shareholders or creditors of the Company can be allowed to intervene in such petitions filed under Section 391 of the Companies Act. It is an admitted position that the appellants who are the creditors of transferee Company namely VAL, the demerged Company were duly heard in the petition filed by the said Company in the Madras High Court for getting their scheme sanctioned and the judgment of the Madras High Court is awaited. If the objection raised by the appellants in the said Court is accepted and the scheme is not approved by the Madras High Court, then, the entire scheme will fail and as such, it cannot be said that there is violation of principles of natural justice. We are, therefore, unable to accept the view taken by learned Single Judge in the said two decisions and overrule the said judgments.21. In our view, therefore, there is no merit in the contention raised by the learned Counsel appearing on behalf of the appellants. | 0 | 6,002 | 954 | ### 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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had filed a petition under Sections 391-394 in the Calcutta High Court and in this context, learned Single Judge came to the conclusion that the Standard Chartered Bank being neither the shareholder, member and creditor of the transferee Company which was before the Court, had no locus to be heard in the said proceedings. Similar view has been taken by the Division Bench of this Court in the case of HindalcoIndustries Ltd in Company Petition No.293/2009 and connected Company Application No.234/2009. In the said case, The Company was Flagship Company of Aditya Birla Group. The Company proposed to undertake the financial restructuring exercise on the terms and conditions spelt out in the said proposed scheme and it was presented for approval under Section 391 read with Section 100 of the Companies Act. An objection was raised by one Ram Niranjan Kediya of Tourism Service Private Ltd. He was admittedly neither shareholder nor creditor of the petitioner Company. The question before the Court was whether he had any locus to raise any objection in relation to scheme propounded by the Company under Section 391 of the Companies Act and in that context, the Division Bench had observed that the said intervenor neither being the member or creditor of the Company, had no locus to intervene in the said petition. Learned Counsel for the appellants had vehemently urged that the facts of the said case were different since it was a petition filed under Section 100 of the Companies Act for financial restructuring and, therefore, the ratio of the said judgment does not apply to the facts of the present case. We are unable to accept the said contention of learned Counsel. The issue involved in the said case was identical and the question was whether any exercise which has to be carried out by the Company for restructuring as contemplated under Section 100 whether the intervenor, who was neither shareholder or creditor, can intervene and in such context, therefore, the Court had held that the said person had no locus. The ratio of the said case squarely applies to the present case.17. The Division Bench of this Court in the case of Securities and Exchange Board of India (SEBI) Vs. Sterlite Industries (India) Ltd. Reported in (2003) 113 Comp Cases 273(Bom.) also held that SEBI who had filed an application for intervention had no locus in the petition under Section 391 of the Companies Act not being shareholder or creditor of the Company. In the said case, it was contended that SEBI had interest in the said petition. The Division Bench however, did not accept the said contention and submitted that at the highest notice can be issued only to Central Government under Section 394-A and SEBI could not claim to have any locus in the said application under Section 391 of the Companies Act. In our view, the ratio of the said judgment would also directly apply to the facts of the present case.18. Delhi High Court in two separate judgments, namely in Company Petition No.54/1980 and Re: Telesound India Pvt Ltd (supra) has also taken a similar view and has observed that there is no provision of notice to creditors of the transferor Company at any stage either prior to making of the order or subsequent thereto except insofar as the creditors may have notice of it by public advertisement. Similarly, Delhi High Court in Union of India Vs. Asia Udyog Pvt Ltd (supra) has observed that such creditors of transferee Company would have no locus in the scheme of amalgamation filed by the transferor Company.19. It was also contended that in view of the provisions of Order I, Rule 10(2) of C.P.C. since the party whose rights are adversely affected is necessary party in a suit, on the same analogy the appellants being adversely affected by the order of acceptance of the scheme had right to hear in this petition. Reliance was placed on the judgment of the Apex Court in the case of RameshHirachand Kundanmal (supra). In our view, it will not be possible to draw the same analogy as is tried to be drawn on the basis of the provisions of Order I, Rule 10(2) of C.P.C. and consequently, the ratio of the said judgment cannot be made applicable to the facts of the present case.20. Reliance was placed on two judgments of learned Single Judge of this Court in the matter of ICICI Bank Limited and in the matter of Mayfair Limited (supra). In both these petitions, learned Single Judge has come to the conclusion that the creditor of the transferor Company would equally have right to file his objection to the scheme which is not just and fair to him or to the class of creditors to whom he belongs. In our view, we respectfully disagree with the view taken by learned Single Judge since the provision of Section 391 of the Companies Act cannot be extended to such extent that even third parties namely those persons who are not shareholders or creditors of the Company can be allowed to intervene in such petitions filed under Section 391 of the Companies Act. It is an admitted position that the appellants who are the creditors of transferee Company namely VAL, the demerged Company were duly heard in the petition filed by the said Company in the Madras High Court for getting their scheme sanctioned and the judgment of the Madras High Court is awaited. If the objection raised by the appellants in the said Court is accepted and the scheme is not approved by the Madras High Court, then, the entire scheme will fail and as such, it cannot be said that there is violation of principles of natural justice. We are, therefore, unable to accept the view taken by learned Single Judge in the said two decisions and overrule the said judgments.21. In our view, therefore, there is no merit in the contention raised by the learned Counsel appearing on behalf of the appellants.
### Response:
0
### Explanation:
The restrictions, therefore, imposed on the category of person referred to in subsection (1)(a) and (b) of Section 391 of the Companies Act is not found in(2) of Section 392 of the Companies Act. Keeping in view the aforesaid provision, therefore, the rival contentions will have to be taken into consideration.12. In the present case, since the transferee Company is having its registered office at Madras, the petition was filed in the Madras High Court by the transferee Company and in the said petition, the appellants being the creditors of the transferee Company were duly heard and judgment has now been reserved by the Madras High Court onview of this, the final order passed in both the Courts would be dependent on both the transferor and transferee Company obtaining necessary sanction from the Court of competent jurisdiction. Even if one Court refuses to sanction the scheme, the entire scheme resultantly wouldguidelines, therefore, which are laid down by the Apex Court pertain to the power of the Court in taking into consideration the scheme not only from the point of view of majority shareholders or creditors but also from the point of view of minority shareholders and creditors. The submission made by learned Counsel appearing on behalf of the appellants, therefore, cannot be accepted and the ratio of this judgment of the Apex Court in the said case, is not of any assistance to thethe present case, the appellants are neither the shareholders nor creditors of the transferor Company and as such, the question of permitting them to intervene in the transferors petition filed under Section 391 of the Companies Act, does notour view, the ratio of the said judgment does not advance the case of the appellants any further in the facts and circumstances of the present case. Inthe present case, the appellants are neither the shareholders nor creditors of the transferor Company and as such, the question of permitting them to intervene in the transferors petition filed under Section 391 of the Companies Act, does notis not possible to accept the said submission. As we have pointed out hereinabove, the judgment in the case of MiheerMafatlal (supra) does not in any way apply to the creditors of the transferee Company and it does not lay down the ratio that the creditor of transferee Company would also have right to intervene in the petition filed by the transferor Company. Secondly, in the case of National Textiles Workmen Union (supra), the issue involved was regarding the workmen of the Company who had filed winding up petition and in that context, therefore, the Supreme Court held that the workers of the said Company would be adversely affected and, therefore, they had right and locus to intervene in the said winding upare unable to accept the said contention of learned Counsel. The issue involved in the said case was identical and the question was whether any exercise which has to be carried out by the Company for restructuring as contemplated under Section 100 whether the intervenor, who was neither shareholder or creditor, can intervene and in such context, therefore, the Court had held that the said person had no locus. The ratio of the said case squarely applies to the presentthe said case, it was contended that SEBI had interest in the said petition. The Division Bench however, did not accept the said contention and submitted that at the highest notice can be issued only to Central Government under Sectionand SEBI could not claim to have any locus in the said application under Section 391 of the Companies Act. In our view, the ratio of the said judgment would also directly apply to the facts of the presentour view, it will not be possible to draw the same analogy as is tried to be drawn on the basis of the provisions of Order I, Rule 10(2) of C.P.C. and consequently, the ratio of the said judgment cannot be made applicable to the facts of the presentour view, we respectfully disagree with the view taken by learned Single Judge since the provision of Section 391 of the Companies Act cannot be extended to such extent that even third parties namely those persons who are not shareholders or creditors of the Company can be allowed to intervene in such petitions filed under Section 391 of the Companies Act. It is an admitted position that the appellants who are the creditors of transferee Company namely VAL, the demerged Company were duly heard in the petition filed by the said Company in the Madras High Court for getting their scheme sanctioned and the judgment of the Madras High Court is awaited. If the objection raised by the appellants in the said Court is accepted and the scheme is not approved by the Madras High Court, then, the entire scheme will fail and as such, it cannot be said that there is violation of principles of natural justice. We are, therefore, unable to accept the view taken by learned Single Judge in the said two decisions and overrule the said judgments.21. In our view, therefore, there is no merit in the contention raised by the learned Counsel appearing on behalf of the appellants.
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Employers Of Firestone Tyre And Rubber Co. Ltd Vs. Their Workmen | record or the facts are admitted. In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fairplay. If the second procedure leads to a just decision of the disputed paints and is fairer to the delinquent than the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated. It must, however, be emphasised that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case, only.As illustration we may mention one such case which was recently before us. There a bank clerk had allowed over-drafts to customers much beyond the limits sanctioned by the bank. The clerk had no authority to do so. Before the enquiry commenced he admitted his fault and asked to be excused. He was questioned first to find out if there were any extenuating circumstances before the formal evidence was led to complete the picture of his guilt. We held that the enquiry did not offend any principles of natural justice and was proper (See Central Bank of India Ltd. v. Karunamoy Banerjee, Civil Appeal No. 440 of 1966, D/- l8-8-1967 : (AIR 1968 SC 266 ). 10. In the present case Subramaniam had complained earlier that his version ought to have been elicited first before enquiry against him was ordered. This is exactly what was done by the enquiring officer. We had the whole of Subramaniams statement read to us and found nothing which we can say was unfair. The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected, asked him to reply in English or Telugu as he preferred, invited him to call some workman to assist him, asked him the names of the witnesses he wished to examine and whether he wanted any further time for the preparation of his defence. He was then questioned about the loading of tyres in his van, the invoices he had signed and whether he had checked the tyres loaded. He was next asked what route he had followed, whether there was a chance of pilferage en route and whether he suspected any person of having interfered with the van. He was also asked if he was present when the stock was checked. He denied certain details of this stock taking. The issue was thus narrowed to the fact whether 8 tyres were loaded or 6, it being the case of the Company that 8 tyres were loaded and that of Subramaniam that only 6 tyres were loaded, but his receipt for 8 tyres was obtained. The witnesses who loaded the tyres were then called and were examined searchingly by the Presiding Officer and cross-examined by Subramaniam.No doubt some of the questions appeared to be leading but they were respecting the matter of record and too much legalism cannot be expected from a domestic enquiry of this character.The officer asked Subramaniam again and again whether he was defending himself properly or not and Subramaniam always expressed his satisfaction. 11. In these circumstances, we do not see how the enquiry can be said to have offended any principle of natural justice at all. The Tribunal mechanically applied the dicta of this Court without noticing that the facts here were entirely different from those in the cited cases and the observations covered those cases where all or most of the facts were contested and could not be made applicable to cases where a greater part of the evidence was a matter of written record and the difference was narrow. We are, therefore, of the opinion that the enquiry was properly conducted. As to the evidence of Das it is obvious that Das was supporting Subramaniam in his statement that no tyres were lost during the journey which supported the version that 6 tyres instead of 8 were actually loaded. It is curious that Das never left the van even when Subramaniam went out and on the solitary occasion when Das left the van Subramaniam was in the company of another officer of the Company at the Depot. The evidence of Subramaniam and Das taken together excludes the possibility of loading of 8 tyres. And this is how Das comes into the picture. It is obvious that the enquiring officer and the Manager relied upon the evidence of those who loaded the tyres supported as it was by the admission several times repeated by Subramaniam that he had checked the tyres at the time of loading. In other words, the Management refused to believe Subramaniam even though he was supported by Das. This the Management was entirely within its right in doing and the Tribunal was in error in exercising appellate powers by coming to a different conclusion. All that the Tribunal could do was to see that the enquiry was properly conducted. As in our opinion the enquiry was so conducted the decision of the Tribunal cannot be supported. | 1[ds]It has tried to meet each of the grounds and in our opinion successfully. We shall take these grounds one by one and indicate the submissions which in our opinion must be allowed to prevail.As regards ground No. (a) it is clear to us that, although it may he desirable to call for such an explanation before serving a charge-sheet there is no principle which compels such a course. The calling for an explanation can only be with a view to making an enquiry unnecessary, where the explanation is good but in many cases it would be open to the criticism that the defence of the workman was being fished out. If after a preliminary enquiry there is prima facie reason to think that the workman was at fault, a charge-sheet setting out the details of the allegations and the likely evidence, may be issued without offending against any principle of justice and fairplay.This is what was done here and we do not think that there was any disadvantage to the workmanIn these circumstances, it is hardly possible to say that the workman was at a disadvantage in any wayGround No. (c) was not a ground of complaint before the Tribunal. This ground was made out by the Tribunal. In fact these statements were not included in the record of the enquiry. Nor were they made the basis of any conclusion. As to ground No. (d) it is sufficient to say that the minutes were hardly needed as the workman was present personally and had conducted the defence. If he needed to read the record he could have easily asked for an inspection and we have no doubt in our mind that he would have been given such an inspection. The minutes show an utmost consideration at all stages of the need for a proper defence.The Tribunal equated the domestic enquiry to enquiries under Art. 311 of the Constitution which was hardly proper8. It seems to us that the enquiries officer afforded every opportunity to Subramaniam to controvert or prove his caseSubramaniam was informed of the charge very clearly, the witnesses were examined in his presence and he was allowed to cross-examine them fully. A true record was kept. He was given an opportunity to lead evidence and the enquiry officer and the manager gave him a full chance to explain, after apprising him in detail of the findings tentatively reached. The evidence of Das was not dealt with in detail but as Das was not concerned with the loading operation and his evidence was not apparently accepted that Subramaniam had not removed the tyres. Das was apparently taken to support Subramaniams claim that the tyres were not loaded at all, a conclusion not reached by the management on evidence10. In the present case Subramaniam had complained earlier that his version ought to have been elicited first before enquiry against him was ordered. This is exactly what was done by the enquiring officer. We had the whole of Subramaniams statement read to us and found nothing which we can say was unfair. The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected, asked him to reply in English or Telugu as he preferred, invited him to call some workman to assist him, asked him the names of the witnesses he wished to examine and whether he wanted any further time for the preparation of his defence. He was then questioned about the loading of tyres in his van, the invoices he had signed and whether he had checked the tyres loaded. He was next asked what route he had followed, whether there was a chance of pilferage en route and whether he suspected any person of having interfered with the van. He was also asked if he was present when the stock was checked. He denied certain details of this stock taking. The issue was thus narrowed to the fact whether 8 tyres were loaded or 6, it being the case of the Company that 8 tyres were loaded and that of Subramaniam that only 6 tyres were loaded, but his receipt for 8 tyres was obtained. The witnesses who loaded the tyres were then called and were examined searchingly by the Presiding Officer and cross-examined by Subramaniam.No doubt some of the questions appeared to be leading but they were respecting the matter of record and too much legalism cannot be expected from a domestic enquiry of this character.The officer asked Subramaniam again and again whether he was defending himself properly or not and Subramaniam always expressed his satisfaction11. In these circumstances, we do not see how the enquiry can be said to have offended any principle of natural justice at all. The Tribunal mechanically applied the dicta of this Court without noticing that the facts here were entirely different from those in the cited cases and the observations covered those cases where all or most of the facts were contested and could not be made applicable to cases where a greater part of the evidence was a matter of written record and the difference was narrow. We are, therefore, of the opinion that the enquiry was properly conducted. As to the evidence of Das it is obvious that Das was supporting Subramaniam in his statement that no tyres were lost during the journey which supported the version that 6 tyres instead of 8 were actually loaded. It is curious that Das never left the van even when Subramaniam went out and on the solitary occasion when Das left the van Subramaniam was in the company of another officer of the Company at the Depot. The evidence of Subramaniam and Das taken together excludes the possibility of loading of 8 tyres. And this is how Das comes into the picture. It is obvious that the enquiring officer and the Manager relied upon the evidence of those who loaded the tyres supported as it was by the admission several times repeated by Subramaniam that he had checked the tyres at the time of loading. In other words, the Management refused to believe Subramaniam even though he was supported by Das. This the Management was entirely within its right in doing and the Tribunal was in error in exercising appellate powers by coming to a different conclusion. All that the Tribunal could do was to see that the enquiry was properly conducted. As in our opinion the enquiry was so conducted the decision of the Tribunal cannot be supported. | 1 | 2,656 | 1,157 | ### 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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record or the facts are admitted. In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fairplay. If the second procedure leads to a just decision of the disputed paints and is fairer to the delinquent than the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated. It must, however, be emphasised that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case, only.As illustration we may mention one such case which was recently before us. There a bank clerk had allowed over-drafts to customers much beyond the limits sanctioned by the bank. The clerk had no authority to do so. Before the enquiry commenced he admitted his fault and asked to be excused. He was questioned first to find out if there were any extenuating circumstances before the formal evidence was led to complete the picture of his guilt. We held that the enquiry did not offend any principles of natural justice and was proper (See Central Bank of India Ltd. v. Karunamoy Banerjee, Civil Appeal No. 440 of 1966, D/- l8-8-1967 : (AIR 1968 SC 266 ). 10. In the present case Subramaniam had complained earlier that his version ought to have been elicited first before enquiry against him was ordered. This is exactly what was done by the enquiring officer. We had the whole of Subramaniams statement read to us and found nothing which we can say was unfair. The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected, asked him to reply in English or Telugu as he preferred, invited him to call some workman to assist him, asked him the names of the witnesses he wished to examine and whether he wanted any further time for the preparation of his defence. He was then questioned about the loading of tyres in his van, the invoices he had signed and whether he had checked the tyres loaded. He was next asked what route he had followed, whether there was a chance of pilferage en route and whether he suspected any person of having interfered with the van. He was also asked if he was present when the stock was checked. He denied certain details of this stock taking. The issue was thus narrowed to the fact whether 8 tyres were loaded or 6, it being the case of the Company that 8 tyres were loaded and that of Subramaniam that only 6 tyres were loaded, but his receipt for 8 tyres was obtained. The witnesses who loaded the tyres were then called and were examined searchingly by the Presiding Officer and cross-examined by Subramaniam.No doubt some of the questions appeared to be leading but they were respecting the matter of record and too much legalism cannot be expected from a domestic enquiry of this character.The officer asked Subramaniam again and again whether he was defending himself properly or not and Subramaniam always expressed his satisfaction. 11. In these circumstances, we do not see how the enquiry can be said to have offended any principle of natural justice at all. The Tribunal mechanically applied the dicta of this Court without noticing that the facts here were entirely different from those in the cited cases and the observations covered those cases where all or most of the facts were contested and could not be made applicable to cases where a greater part of the evidence was a matter of written record and the difference was narrow. We are, therefore, of the opinion that the enquiry was properly conducted. As to the evidence of Das it is obvious that Das was supporting Subramaniam in his statement that no tyres were lost during the journey which supported the version that 6 tyres instead of 8 were actually loaded. It is curious that Das never left the van even when Subramaniam went out and on the solitary occasion when Das left the van Subramaniam was in the company of another officer of the Company at the Depot. The evidence of Subramaniam and Das taken together excludes the possibility of loading of 8 tyres. And this is how Das comes into the picture. It is obvious that the enquiring officer and the Manager relied upon the evidence of those who loaded the tyres supported as it was by the admission several times repeated by Subramaniam that he had checked the tyres at the time of loading. In other words, the Management refused to believe Subramaniam even though he was supported by Das. This the Management was entirely within its right in doing and the Tribunal was in error in exercising appellate powers by coming to a different conclusion. All that the Tribunal could do was to see that the enquiry was properly conducted. As in our opinion the enquiry was so conducted the decision of the Tribunal cannot be supported.
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where the explanation is good but in many cases it would be open to the criticism that the defence of the workman was being fished out. If after a preliminary enquiry there is prima facie reason to think that the workman was at fault, a charge-sheet setting out the details of the allegations and the likely evidence, may be issued without offending against any principle of justice and fairplay.This is what was done here and we do not think that there was any disadvantage to the workmanIn these circumstances, it is hardly possible to say that the workman was at a disadvantage in any wayGround No. (c) was not a ground of complaint before the Tribunal. This ground was made out by the Tribunal. In fact these statements were not included in the record of the enquiry. Nor were they made the basis of any conclusion. As to ground No. (d) it is sufficient to say that the minutes were hardly needed as the workman was present personally and had conducted the defence. If he needed to read the record he could have easily asked for an inspection and we have no doubt in our mind that he would have been given such an inspection. The minutes show an utmost consideration at all stages of the need for a proper defence.The Tribunal equated the domestic enquiry to enquiries under Art. 311 of the Constitution which was hardly proper8. It seems to us that the enquiries officer afforded every opportunity to Subramaniam to controvert or prove his caseSubramaniam was informed of the charge very clearly, the witnesses were examined in his presence and he was allowed to cross-examine them fully. A true record was kept. He was given an opportunity to lead evidence and the enquiry officer and the manager gave him a full chance to explain, after apprising him in detail of the findings tentatively reached. The evidence of Das was not dealt with in detail but as Das was not concerned with the loading operation and his evidence was not apparently accepted that Subramaniam had not removed the tyres. Das was apparently taken to support Subramaniams claim that the tyres were not loaded at all, a conclusion not reached by the management on evidence10. In the present case Subramaniam had complained earlier that his version ought to have been elicited first before enquiry against him was ordered. This is exactly what was done by the enquiring officer. We had the whole of Subramaniams statement read to us and found nothing which we can say was unfair. The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected, asked him to reply in English or Telugu as he preferred, invited him to call some workman to assist him, asked him the names of the witnesses he wished to examine and whether he wanted any further time for the preparation of his defence. He was then questioned about the loading of tyres in his van, the invoices he had signed and whether he had checked the tyres loaded. He was next asked what route he had followed, whether there was a chance of pilferage en route and whether he suspected any person of having interfered with the van. He was also asked if he was present when the stock was checked. He denied certain details of this stock taking. The issue was thus narrowed to the fact whether 8 tyres were loaded or 6, it being the case of the Company that 8 tyres were loaded and that of Subramaniam that only 6 tyres were loaded, but his receipt for 8 tyres was obtained. The witnesses who loaded the tyres were then called and were examined searchingly by the Presiding Officer and cross-examined by Subramaniam.No doubt some of the questions appeared to be leading but they were respecting the matter of record and too much legalism cannot be expected from a domestic enquiry of this character.The officer asked Subramaniam again and again whether he was defending himself properly or not and Subramaniam always expressed his satisfaction11. In these circumstances, we do not see how the enquiry can be said to have offended any principle of natural justice at all. The Tribunal mechanically applied the dicta of this Court without noticing that the facts here were entirely different from those in the cited cases and the observations covered those cases where all or most of the facts were contested and could not be made applicable to cases where a greater part of the evidence was a matter of written record and the difference was narrow. We are, therefore, of the opinion that the enquiry was properly conducted. As to the evidence of Das it is obvious that Das was supporting Subramaniam in his statement that no tyres were lost during the journey which supported the version that 6 tyres instead of 8 were actually loaded. It is curious that Das never left the van even when Subramaniam went out and on the solitary occasion when Das left the van Subramaniam was in the company of another officer of the Company at the Depot. The evidence of Subramaniam and Das taken together excludes the possibility of loading of 8 tyres. And this is how Das comes into the picture. It is obvious that the enquiring officer and the Manager relied upon the evidence of those who loaded the tyres supported as it was by the admission several times repeated by Subramaniam that he had checked the tyres at the time of loading. In other words, the Management refused to believe Subramaniam even though he was supported by Das. This the Management was entirely within its right in doing and the Tribunal was in error in exercising appellate powers by coming to a different conclusion. All that the Tribunal could do was to see that the enquiry was properly conducted. As in our opinion the enquiry was so conducted the decision of the Tribunal cannot be supported.
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State Of H.P. Vs. Kailash Chand Mahajan | The Court held that there was no intelligble differentia on the basis of which the classification could be justified." 98. The situation in the case in hand is entirely different.Ameerunissa Begum and others v. Mahboob Begum and others, 1953 S.C.R. 404 is clearly distinguishable. The reason is the impugned enactment excluded a particular set of persons viz., heirs of Nawab. They were even denied access to Court to ventilate their grievances. Secondly, it was a named legislation, though for apparent purposes it deals specifically with the wives claims of succession. Lastly, we will deal with Ram Prasad Narayan Sahi and another v. The State of Bihar and others, 1953, S.C.R. 1129. At 1132-33, it held as under :- ``The decision of the majority of this court in Chiranjit Lal v. The Union of India, is relied on in support of these contentions. In that case, however the majority fell justified in upholding the legislation, though it adversely affected the rights and interest of the shareholders of a particular joint stock company, because the mismanagement of the companys affairs prejudicially affected the production of an essential commodity and caused serious unemployment amongst a section of the community. Mr. Justice Das and I took the view that legislation directed against a particular named person or corporation was obviously discriminatory and could not constitutionally be justified even if such legislation resulted in some benefit to the public. In a system of government by political parties I was apprehensive of the danger inherent in special enactments which deprive particular named persons of their liberty or property because the Legislature thinks them guilty of misconduct, and said in my dissenting opinion: "Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragements. 99. It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of law and that too in a private dispute between the parties. Hence, this ruling again has no application to the facts of the case. As we observed in the beginning of the judgment, if the State is well entitled to introduce an age of superannuation [we have referred to 1985(2) SCR 579 Nagarajas case], how could that be called discrimination or unreasonable? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14. Whether the failure to implead Chauhan would be fatal to the Writ Petition. 100. The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct. 101. On the contrary, we think we should approach the matter from this point of view, viz., to render an effective decision whether the presence of Chauhan is necessary? We will in this connection refer to A. Janardhana v. Union of India and others, 1983(3) S.C.C. 601. At para 36 it is held as under :- "... Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by any one individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground." 102. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application. 104. There is no denying the fact that the first respondent had been "baffled with great grief and fears and borne the conflict of dream shattering years." But the State says that this is a case of "much of a muchness" in the words of Sir John Vanbrugh (in "The Provoked Husband"). 105. How do we balance these claims except to examine the matter in the light of the law and quote Horace: "tempus abire tibi est" ("time you were off"). 106. In the light of the above discussion, it follows that the appellant is entitled to succeed. We hold that on 13.7.90 the first respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end. | 1[ds]21. Section 3 of the amending Act was given retrospective effect from 13.7.90. This Section presupposes an appointment prior to amendment, namely, prior to 13.7.90. In this case, the appointment gives a right to continue after attaining the age of 65 years. If, therefore, the two tests are answered, the appointment is rendered void irrespective of the fact when the appointment took place. The "Objects & Reasons" of the Act put the matter beyond doubt. In our country, the concept of age of superannuation is entrenched both in administrative as well as constitutional systems. Public policy requires to prescribe the age of 65 years for retirement of the members of Electricity Board as in the case of High Court judges, members of tribunals and other high functionaries.22. The High Court had gone wrong as though the appointment of the first respondent was not covered by Section 3(1) since the right to continue as Chairman was pursuant to an appointment after he had attained the age of 65 years. Factually this is incorrect because the appointment of the first respondent as Chairman was on 13.8.82. Thereafter the same appointment came to be extended from time to time. Each of those extensions cannot constitute a new appointment. It is one appointment which is being continued from time to time. Legally speaking also, the reasoning of the High Court is wrong because it leads to unconstitutionality.Looking it from that point of view this is a legislation which applies to all. The chance that the first respondent was affected at the relevant time by introduction of this legislation will not in any manner render it violative of Article 14 on the ground thatit is a single personsa matter of fact, the counter-affidavit of the State makes it clear that the order of reappointment came to be passed under Section 5 read with Section 8 rule 4. The statement of `Objects and Reasons also makes a reference to Section 8. Thus, both legally and factually Section 5(6) cannot help the State.34. Much cannot be made of the words "or being" brought in by way of amendment of Section 5(6). This only connotes the attainment of age of 65 subsequent to the appointment. When the Constitution uses similar language both under Articles 102 and 191, it makes it clear that under both the Articles 102 as well as 190, the seat falling vacant retrospectively on the incurring of such a disqualification there is no automatic cessation provided under Section 10. Thus the words "has attained" occurring under Section 5(6) assume great importance because there is no provision under Section 10 prescribing age of disqualification and the consequent removal. Even under Section, it supposes a person being appointed before the age of 65 and attaining the age of 65. Such a contingency does not arise here. Therefore, it is submitted that Sections 5(6) and 3(1) of the amending Act should be read together. As regards the amending Act, it cannot be denied that on the date of ordinance it applied only to the respondent and nobody else. While Section 5(6) takes care of future appointment Section 3(1) deals with reappointment. On the date of ordinance Section 5(6) would apply to nobody else because this respondent alone was holding a tenure appointment. The legislation was brought about only with a view to unseat the respondent. There can be a single persons legislation provided it is in furtherance of legislative objects. The burden is on the State to prove the reason or the basis for this legislation. Such a burden had not beenit is clear but for mismanagement or subserving a public cause or a social or economic obligation, such pieces of single persons legislation would not have been upheld.36. Certainly, there may be a legislation in general application and it may apply to an individual; but that is not the case here. On the date of the coming into force of the Act this respondent alone was affected. The amending Act itself makes a discrimination without any justification or rationale. If the respondent is treated alongwith others, it would amount to treating unequals as. A careful reading of the Section will clearly disclose the section merely talks of term of office and conditions for reappointment. Those conditions may be as prescribed. The word "prescribed" has come to be defined under Section 2(9) of the said Act. "Prescribed" means prescribed made by rules under this Act. Nowhere in the Section, in our considered view, an additional power for appointment is conferred. At best it could be said that it merely lays down the eligibility for reappointment. As stated above, that eligibility must be as per conditions prescribed under the rules. As a matter of fact, when it says "shall hold the office for such period" it means the period as prescribed under the rules. Beyond this, we are unable to persuade ourselves to come to the conclusion that there is any separate power for reappointment. It is not even necessary to provide for such a separate power. The reason why we say so is that Sections 14 and 16 of Central General Clauses Act provide for such a power. Section 16 deals with the power of appointment carrying with it the power of dismissal, while Section 14 states any power conferred unless a different intention appears could be exercised from time to time as occasion requires. Where, therefore, Section 5 provides for a power to appoint, certainly, that power could be exercised from time to time as occasion requires. Thus one need not search for a separate provision in this regard. We may also note that the prescriptions in relation to the term was contained under Electricity (Supply) (H.P. Amendment) Act, 1990.In our view this Section confers an enabling power on the State Government to take punitive action against a member of the Board who falls under any one of the clauses (a) to (f). The fact that it is punitive is clear because Sub-section (3) contemplates giving an opportunity to offer an explanation and thereafter removing him. Once so removed, he is ineligible for reappointment either as a Member or any other capacity in the Board.One thing that is striking is that rules may themselves provide for eligibility for reappointment. In this connection it may not be out of context to refer to the letter of the Ministry of Home Affairs asking the State to explore the possibility of making rules instead of amending the Act. This was at a time when the State Government sought the assent of the Present. Where, therefore, rules could provide for the conditions for eligibility for reappointment, equally it should follow by amending the Act such eligibility for reappointment can be provided. In the conspectus of this Section it would be thus clear - (1) there is only one source of power of appointment contained under Section 5; (2) there is no separate power in relation to reappointment under Section 8; (3) Section 10 is only an enabling power for taking punitive action against such of those members who fall under clauses (a) to (f) of the said Section and (4) Section 78(2) (a) confers a power upon the State Government to frame rules.It is rather unfortunate that the High Court has missed the true import of the words "or being". Therefore, we are unable to subscribe to the findings of the High Court when it states "the provision lays down the age of superannuation for a member prospectively which disqualifies a person from being appointed or being a member after he attains the age of 65 years" by itself it does not affect those who had been given appointment after having attained the age of 65 years. The Legislature was conscious of it, but thought of enacting a provision like Section 3 on that account.65. We are unable to see any warrant for holding that Section 5(6) as amended having regard to the use of language "or being" would any way exclude such of those members or even the Chairman who have attained the age of 65 years of age at the time of appointment. Accordingly, we conclude that Section 5(6) itself would be enough to hold that on the coming into force of the amending Act, namely, 13.7.90 the first respondent ceases to hold the office by the rigour of law, as rightly contended by Mr. Shanti Bhushan, learned counsel for thehas already been seen that Section 10 merely confers an enabling power to take punitive action. It is one thing the State has power to take punitive action, it is entirely different thing to say that in law the first respondent ceases to hold office on the incurring of the disqualification of attainment of 65 years of age. If Section 5(6) itself brings about a cessation of office, that sub-section being self-executory in nature, there is no need to provide for the same under Section 10 once over again. Merely because the parent Act (Central Legislation) provides for a disqualification on account of becoming a Member of Parliament, State Legislature or Local Board, that does not mean there must be a corresponding provision incorporating age as well under Section 10. We are unable to agree with Mr. Kapil Sibal. Equally, the contention that Section 5(6) only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65 is wholly unacceptable to us. First of all, as we have stated earlier there is no question of any separate power for reappointment under Section 8 and the only power being traceable to Section 5 read with Section 14 and 16 of the General clauses Act.From this we are unable to see how any help could be derived by the first respondent to base his arguments that the power of reappointment is traceable to Section 8. This aspect of the matter had already been dealt with by us.71. The statement of `Objects and Reasons makes a reference to Section 8. But it does not again mean there is an independent power of appointment. What the above extract of counter-affidavit and reference to Section 8 mean is denial of malafide. Besides, hitherto no outer age limit has been prescribed for the post of Chairman. It is that which is sought to be prescribed now. The reference to Section 8 means only the "term" and nothing else.72. We are also unable to accept the arguments advanced on behalf of the first respondent that for a tenure post no period can be fixed. Instances are not wanting in this regard. Therefore, rightly reference is made by Mr. Shanti Bhushan to Article 224 of theOne thing that is significant is it contains a `non obstante clause. An appointment of a Member of the Board made prior to the commencement to this Act namely, 13.7.90 (giving retrospective operation) when gives a right to continue as a member after attaining the age of 65 years, that appointment is rendered void.Once it is so rendered void, the law deems that he has ceased to hold office of the Member of the Board. By a reading of the Section we are unable to conclude how Section 3(1) would fail to apply to a person who on the date of the commencement was already more than 65 years. This line of reasoning adopted by the High Court does not appeal to us. The Section nowhere makes a distinction between those who on the date of the enactment are "below" or "over" 65 years of age. Such a distinction is totallythat question is answered in the affirmative there is a cessation of office, in view of the terms of that Section. The contrary conclusion would lead to strange results. Those who are appointed prior to the Act and on the attainment of 65 years on 13.7.90, would vacate the office while a person already 65 on that date and after the passing of the Act notwithstanding the policy of prescribing the age of superannuation at 65 years would continue in the office. The object of introducing an age of superannuation itself is to weed out the older elements and infuse fresh blood so that the administration could function withthe only conclusion possible is, by reason of appointment if the incumbent is enabled to continue after attaining the age of 65 years such continuing is rendered void.79. No doubt as we have stated above, Section 5(6) as amended achieves this purpose. Yet if there is another Section which deals with the same it must be regarded as one introduced by way of abundant caution. In short, Section 3(1) is epexegesis.80. The arguments advanced by Mr. Kapil Sibal remind us of the eloquent words of Dr. Johnson "There is a wicked inclination in most people to suppose an old man decayed in his intellects. If a young or middle aged man, when leaving a company does not recollect where he laid his hat, it is nothing; but if the same in attention is discovered in an old man, people will shrug up their shoulders, and say, `His memory is going. 81. In our opinion such sentiments can be no answer against the operation of law.Thus, it will be clear that even legitimate expectation cannot preclude legislation.85. Where the right to continue in office has been put an end to by statute, even then it may be complained that the other rights like salary and perks would continue to be reserved and they could be claimed. To avoid that contention, Section 3(2) provides for compensation equivalent to the amount of salary and allowances for the unexpired term of office.86. Even assuming that the reasoning of the High Court is correct, in that, by the term of appointment he should have a right to continue after attaining the age of 65, when we look at the notification dated 12.6.89, that gives the first respondent a right to continue beyond the age of 65.From the proposition it is clear that there could a legislation relating to a single person. Assuming for a moment, that the Section 3 applies only to the first respondent even then, where it is avowed policy of the State to introduce an age of superannuation of 65 years of age, there is nothing wrong with the same.We are unable to agree with this argument. No doubt, in this case Lalit Narayan Mishra Institute alone was taken over by the Legislature. That was the only institution affected thereby. In spite of this the Court held this enactment is not violative of Article 14, since the institutions of like nature would fall within the ambit of the statute, notwithstanding the fact that only one institute has been specified in the schedule. The attempt of the learned counsel for the first respondent that in all these cases legislative intervention became necessary because there were some other reasons namely, mismanagement requiring taking over the banks and temples etc. and therefore, the single persons legislation was upheld is not tenable. We also hold that in order to justify a legislation of this character, no extraordinary situation need be disclosed. The contention that this is not in furtherance of the legislative object, cannot also be accepted because it has already been seen that the legislative object is to introduce an age of superannuation. Beyond this nothing more need be established by the State. The possibility of this legislation applying to one or more persons exists in principle. The fact that only one individual came to be affected cannot render the legislation arbitrary as violative of Article 14. This is because Section 3 is general in terms and the incidence of its applying to one individual does not render the legislation invalid.93. The theory advanced by the learned counsel for the first respondent that there must be mismanagement or some extraordinary situation to warrant a legislation of its character also does not seem to be correct as seen from The Atlas Cycle Industries Ltd., Sonepat v. Their Workmen, 1953(30 S.C.R. Suppl. 89 atThe attempt to distinguish this case that it was one wherein a benefit of extension was conferred and that a number of industrial adjudications were pending cannot be accepted.The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct.What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application.In the light of the above discussion, it follows that the appellant is entitled to succeed. We hold that on 13.7.90 the first respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end. | 1 | 22,143 | 3,404 | ### Instruction:
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The Court held that there was no intelligble differentia on the basis of which the classification could be justified." 98. The situation in the case in hand is entirely different.Ameerunissa Begum and others v. Mahboob Begum and others, 1953 S.C.R. 404 is clearly distinguishable. The reason is the impugned enactment excluded a particular set of persons viz., heirs of Nawab. They were even denied access to Court to ventilate their grievances. Secondly, it was a named legislation, though for apparent purposes it deals specifically with the wives claims of succession. Lastly, we will deal with Ram Prasad Narayan Sahi and another v. The State of Bihar and others, 1953, S.C.R. 1129. At 1132-33, it held as under :- ``The decision of the majority of this court in Chiranjit Lal v. The Union of India, is relied on in support of these contentions. In that case, however the majority fell justified in upholding the legislation, though it adversely affected the rights and interest of the shareholders of a particular joint stock company, because the mismanagement of the companys affairs prejudicially affected the production of an essential commodity and caused serious unemployment amongst a section of the community. Mr. Justice Das and I took the view that legislation directed against a particular named person or corporation was obviously discriminatory and could not constitutionally be justified even if such legislation resulted in some benefit to the public. In a system of government by political parties I was apprehensive of the danger inherent in special enactments which deprive particular named persons of their liberty or property because the Legislature thinks them guilty of misconduct, and said in my dissenting opinion: "Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragements. 99. It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of law and that too in a private dispute between the parties. Hence, this ruling again has no application to the facts of the case. As we observed in the beginning of the judgment, if the State is well entitled to introduce an age of superannuation [we have referred to 1985(2) SCR 579 Nagarajas case], how could that be called discrimination or unreasonable? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14. Whether the failure to implead Chauhan would be fatal to the Writ Petition. 100. The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct. 101. On the contrary, we think we should approach the matter from this point of view, viz., to render an effective decision whether the presence of Chauhan is necessary? We will in this connection refer to A. Janardhana v. Union of India and others, 1983(3) S.C.C. 601. At para 36 it is held as under :- "... Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by any one individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground." 102. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application. 104. There is no denying the fact that the first respondent had been "baffled with great grief and fears and borne the conflict of dream shattering years." But the State says that this is a case of "much of a muchness" in the words of Sir John Vanbrugh (in "The Provoked Husband"). 105. How do we balance these claims except to examine the matter in the light of the law and quote Horace: "tempus abire tibi est" ("time you were off"). 106. In the light of the above discussion, it follows that the appellant is entitled to succeed. We hold that on 13.7.90 the first respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end.
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appointment if the incumbent is enabled to continue after attaining the age of 65 years such continuing is rendered void.79. No doubt as we have stated above, Section 5(6) as amended achieves this purpose. Yet if there is another Section which deals with the same it must be regarded as one introduced by way of abundant caution. In short, Section 3(1) is epexegesis.80. The arguments advanced by Mr. Kapil Sibal remind us of the eloquent words of Dr. Johnson "There is a wicked inclination in most people to suppose an old man decayed in his intellects. If a young or middle aged man, when leaving a company does not recollect where he laid his hat, it is nothing; but if the same in attention is discovered in an old man, people will shrug up their shoulders, and say, `His memory is going. 81. In our opinion such sentiments can be no answer against the operation of law.Thus, it will be clear that even legitimate expectation cannot preclude legislation.85. Where the right to continue in office has been put an end to by statute, even then it may be complained that the other rights like salary and perks would continue to be reserved and they could be claimed. To avoid that contention, Section 3(2) provides for compensation equivalent to the amount of salary and allowances for the unexpired term of office.86. Even assuming that the reasoning of the High Court is correct, in that, by the term of appointment he should have a right to continue after attaining the age of 65, when we look at the notification dated 12.6.89, that gives the first respondent a right to continue beyond the age of 65.From the proposition it is clear that there could a legislation relating to a single person. Assuming for a moment, that the Section 3 applies only to the first respondent even then, where it is avowed policy of the State to introduce an age of superannuation of 65 years of age, there is nothing wrong with the same.We are unable to agree with this argument. No doubt, in this case Lalit Narayan Mishra Institute alone was taken over by the Legislature. That was the only institution affected thereby. In spite of this the Court held this enactment is not violative of Article 14, since the institutions of like nature would fall within the ambit of the statute, notwithstanding the fact that only one institute has been specified in the schedule. The attempt of the learned counsel for the first respondent that in all these cases legislative intervention became necessary because there were some other reasons namely, mismanagement requiring taking over the banks and temples etc. and therefore, the single persons legislation was upheld is not tenable. We also hold that in order to justify a legislation of this character, no extraordinary situation need be disclosed. The contention that this is not in furtherance of the legislative object, cannot also be accepted because it has already been seen that the legislative object is to introduce an age of superannuation. Beyond this nothing more need be established by the State. The possibility of this legislation applying to one or more persons exists in principle. The fact that only one individual came to be affected cannot render the legislation arbitrary as violative of Article 14. This is because Section 3 is general in terms and the incidence of its applying to one individual does not render the legislation invalid.93. The theory advanced by the learned counsel for the first respondent that there must be mismanagement or some extraordinary situation to warrant a legislation of its character also does not seem to be correct as seen from The Atlas Cycle Industries Ltd., Sonepat v. Their Workmen, 1953(30 S.C.R. Suppl. 89 atThe attempt to distinguish this case that it was one wherein a benefit of extension was conferred and that a number of industrial adjudications were pending cannot be accepted.The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct.What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application.In the light of the above discussion, it follows that the appellant is entitled to succeed. We hold that on 13.7.90 the first respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end.
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Commissioner Of Income-Tax, Andhra Pradesh,Hyderabad Vs. A. Dharma Reddy, Morthad | 24 (2) (ii) as it stood after the amendment which is relevant and we fail to see on the plain language of the aforesaid provision how it could be held that the business in which the loss was originally sustained was not continued during the assessment year 1956-57.The word "business" has been defined in Section 2 (4) of the Act as including any trade, commerce or manufacture or any advantage or concern in the nature of trade, commerce or manufacture. These words are of wide import the underlying idea being of continuos exercise of an activity.As pointed out by S. R. Das, J., (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 , at p.773= (AIR 1955 SC 176 at p. 181) the word "business" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose. The systematic or organised course of activity of the assessee, in the present case, consisted of dealings or taking of contract in bidi leaves. That business did not depend on the constitution of a partnership firm through which it was carried on nor could it come to an end so long as the assessee carried on the same systematic or organised course of activity with a set purpose.5. The computation of a partners share in the firms profits is dealt with by Section 16 (1) (b). The proviso thereto lays down that if his share was computed as a loss such loss may be set off or carried forward and set off in accordance with the provision of Section 24. Under Section 23 (5) when the assessee is a registered firm and the total income of the firm has been assessed under subsection (1), (3) or (4) as the case may be, the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. There is a proviso which says that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Section 24.The High Court was right in saying that when the profits of a registered firm are ascertained the assessee for the purpose of paying the tax is not the registered firm but each partner of that firm. In a number of decided cases it has been held that the identity of the business for the purpose of Section 24 (2) (ii) does not change by reason of the change in persons who carry on that business since it continues to be carried on by the same individual.The Kerala High Court in Dwarkadas Leeladhar v. Commissioner of Income-tax, Kerala, (1963) 47 ITR 619 (Ker) held that where a registered firm which was working at a loss was dissolved and one of the partners continued the same business as a sole proprietor he was entitled to set off his share of the loss incurred by the firm against the profits accruing to him from the business as a sole proprietor. The Delhi High Court in S. Narain Singh v. Commissioner of Income- tax Delhi, 66 ITR 341=(AIR 1967 Delhi 75) had to deal with a case where an assessee had taken certain liquor contracts and carried on the business of sale of liquor in his individual name and sustained losses. Subsequently he carried on the same business with 10 other persons and sought to set off the previous losses against the profits made in the accounting year. Referring to the meaning and construction of the words "same business" as they stood in Section 24 (2) before the amendment made by the Finance Act of 1955, it was held that the assessee was entitled to carry forward the losses for the previous year and have them set off against the share of his income of the registered firm during the assessment year because the business in which the loss was sustained was the same business.6. In both the above cases reference was made to the decision of the Gujarat High Court in Sitaram Motiram Jain v. Commissioner of Income-tax, (1961) 43 ITR 405 (Guj) in that case an assessee had incurred asses in a business carried on by him as the sole proprietor and a registered firm of which he was a partner took over the business as a running concern. The question was whether he could have the losses incurred by him in the business which he carried on as the sole proprietor carried forward and set off against his share of the profits of the registered firm.After referring to Section 24 (2) (ii) and Section 23 (5) it was observed, what has to be determined in the case of a registered firm is the total income of each partner in the firm as the individual partners are assessed to tax and not the firm as such. A set off for loss which had been carried forward from the earlier years under the provisions of Section 24 would only be available to the individual partner who had suffered the loss and not to the other partners of the firm or the firm.7. In our judgment there could be no manner of doubt that the business in which the loss had been sustained by the assessee when he was a partner of the first firm which was dissolved on March 31, 1955, continued to be carried on by him in partnership with three other persons during the assessment year 1956-57, the business, as stated before, being of dealing in or entering into contracts in respect of bidi leaves. The mode in which he carried on the businees in bidi leaves was one of taking other persons as partners. He did not stop doing that business in the assessment year in question.8. | 0[ds]For getting the benefit under that section it was essential that the business in which the loss was sustained should be continued to be carried on for the assessment year in question. This means that the same concern or partnership which carried on the business the previous year should continue to function in the year of assessment.4. There is no warrant for the proposition put forward on behalf of the appellant that in order to get the benefit of Section 24 (2) (ii)of the Act especially after the amendment made by the Finance Act 1955 the, assessee should carry on the same business in the year of assessment. The change in the Language of the provision substituted by the Amending Act is significant and all that the assessee has to show is that the business in which loss was originally sustained continued to be carried on by him in the assessment year. Now, in the present case, the assessee carried on the business in bidi leaves apart from other businesses. This business he was doing in partnership with another person. Nevertheless the business was of taking contracts in respect of or dealing in bidi leaves. This business he could do either individually or in partnership with some one else. If the first partnership was dissolved it did not mean that his business in bidi leaves came to an end so long as he continued to do that business either individually or in partnership with others. During the assessment year in question he was admittedly carrying on that business in partnership with three others. It could well be said that even according to the provisions of Section 24 (2) as they stood before the amendment made by the Finance of 1955 he continued to carry on the same business but for the purpose of the present case it is Section 24 (2) (ii) as it stood after the amendment which is relevant and we fail to see on the plain language of the aforesaid provision how it could be held that the business in which the loss was originally sustained was not continued during the assessment year 1956-57.The word "business" has been defined in Section 2 (4) of the Act as including any trade, commerce or manufacture or any advantage or concern in the nature of trade, commerce or manufacture. These words are of wide import the underlying idea being of continuos exercise of anpointed out by S. R. Das, J., (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 , at p.773= (AIR 1955 SC 176 at p. 181) the word "business" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose. The systematic or organised course of activity of the assessee, in the present case, consisted of dealings or taking of contract in bidi leaves. That business did not depend on the constitution of a partnership firm through which it was carried on nor could it come to an end so long as the assessee carried on the same systematic or organised course of activity with a set purpose.5. The computation of a partners share in the firms profits is dealt with by Section 16 (1) (b). The proviso thereto lays down that if his share was computed as a loss such loss may be set off or carried forward and set off in accordance with the provision of Section 24. Under Section 23 (5) when the assessee is a registered firm and the total income of the firm has been assessed under subsection (1), (3) or (4) as the case may be, the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. There is a proviso which says that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Section 24.The High Court was right in saying that when the profits of a registered firm are ascertained the assessee for the purpose of paying the tax is not the registered firm but each partner of that firm.firm.7. In our judgment there could be no manner of doubt that the business in which the loss had been sustained by the assessee when he was a partner of the first firm which was dissolved on March 31, 1955, continued to be carried on by him in partnership with three other persons during the assessment year 1956-57, the business, as stated before, being of dealing in or entering into contracts in respect of bidi leaves. The mode in which he carried on the businees in bidi leaves was one of taking other persons as partners. He did not stop doing that business in the assessment year in question. | 0 | 2,823 | 911 | ### Instruction:
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24 (2) (ii) as it stood after the amendment which is relevant and we fail to see on the plain language of the aforesaid provision how it could be held that the business in which the loss was originally sustained was not continued during the assessment year 1956-57.The word "business" has been defined in Section 2 (4) of the Act as including any trade, commerce or manufacture or any advantage or concern in the nature of trade, commerce or manufacture. These words are of wide import the underlying idea being of continuos exercise of an activity.As pointed out by S. R. Das, J., (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 , at p.773= (AIR 1955 SC 176 at p. 181) the word "business" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose. The systematic or organised course of activity of the assessee, in the present case, consisted of dealings or taking of contract in bidi leaves. That business did not depend on the constitution of a partnership firm through which it was carried on nor could it come to an end so long as the assessee carried on the same systematic or organised course of activity with a set purpose.5. The computation of a partners share in the firms profits is dealt with by Section 16 (1) (b). The proviso thereto lays down that if his share was computed as a loss such loss may be set off or carried forward and set off in accordance with the provision of Section 24. Under Section 23 (5) when the assessee is a registered firm and the total income of the firm has been assessed under subsection (1), (3) or (4) as the case may be, the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. There is a proviso which says that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Section 24.The High Court was right in saying that when the profits of a registered firm are ascertained the assessee for the purpose of paying the tax is not the registered firm but each partner of that firm. In a number of decided cases it has been held that the identity of the business for the purpose of Section 24 (2) (ii) does not change by reason of the change in persons who carry on that business since it continues to be carried on by the same individual.The Kerala High Court in Dwarkadas Leeladhar v. Commissioner of Income-tax, Kerala, (1963) 47 ITR 619 (Ker) held that where a registered firm which was working at a loss was dissolved and one of the partners continued the same business as a sole proprietor he was entitled to set off his share of the loss incurred by the firm against the profits accruing to him from the business as a sole proprietor. The Delhi High Court in S. Narain Singh v. Commissioner of Income- tax Delhi, 66 ITR 341=(AIR 1967 Delhi 75) had to deal with a case where an assessee had taken certain liquor contracts and carried on the business of sale of liquor in his individual name and sustained losses. Subsequently he carried on the same business with 10 other persons and sought to set off the previous losses against the profits made in the accounting year. Referring to the meaning and construction of the words "same business" as they stood in Section 24 (2) before the amendment made by the Finance Act of 1955, it was held that the assessee was entitled to carry forward the losses for the previous year and have them set off against the share of his income of the registered firm during the assessment year because the business in which the loss was sustained was the same business.6. In both the above cases reference was made to the decision of the Gujarat High Court in Sitaram Motiram Jain v. Commissioner of Income-tax, (1961) 43 ITR 405 (Guj) in that case an assessee had incurred asses in a business carried on by him as the sole proprietor and a registered firm of which he was a partner took over the business as a running concern. The question was whether he could have the losses incurred by him in the business which he carried on as the sole proprietor carried forward and set off against his share of the profits of the registered firm.After referring to Section 24 (2) (ii) and Section 23 (5) it was observed, what has to be determined in the case of a registered firm is the total income of each partner in the firm as the individual partners are assessed to tax and not the firm as such. A set off for loss which had been carried forward from the earlier years under the provisions of Section 24 would only be available to the individual partner who had suffered the loss and not to the other partners of the firm or the firm.7. In our judgment there could be no manner of doubt that the business in which the loss had been sustained by the assessee when he was a partner of the first firm which was dissolved on March 31, 1955, continued to be carried on by him in partnership with three other persons during the assessment year 1956-57, the business, as stated before, being of dealing in or entering into contracts in respect of bidi leaves. The mode in which he carried on the businees in bidi leaves was one of taking other persons as partners. He did not stop doing that business in the assessment year in question.8.
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For getting the benefit under that section it was essential that the business in which the loss was sustained should be continued to be carried on for the assessment year in question. This means that the same concern or partnership which carried on the business the previous year should continue to function in the year of assessment.4. There is no warrant for the proposition put forward on behalf of the appellant that in order to get the benefit of Section 24 (2) (ii)of the Act especially after the amendment made by the Finance Act 1955 the, assessee should carry on the same business in the year of assessment. The change in the Language of the provision substituted by the Amending Act is significant and all that the assessee has to show is that the business in which loss was originally sustained continued to be carried on by him in the assessment year. Now, in the present case, the assessee carried on the business in bidi leaves apart from other businesses. This business he was doing in partnership with another person. Nevertheless the business was of taking contracts in respect of or dealing in bidi leaves. This business he could do either individually or in partnership with some one else. If the first partnership was dissolved it did not mean that his business in bidi leaves came to an end so long as he continued to do that business either individually or in partnership with others. During the assessment year in question he was admittedly carrying on that business in partnership with three others. It could well be said that even according to the provisions of Section 24 (2) as they stood before the amendment made by the Finance of 1955 he continued to carry on the same business but for the purpose of the present case it is Section 24 (2) (ii) as it stood after the amendment which is relevant and we fail to see on the plain language of the aforesaid provision how it could be held that the business in which the loss was originally sustained was not continued during the assessment year 1956-57.The word "business" has been defined in Section 2 (4) of the Act as including any trade, commerce or manufacture or any advantage or concern in the nature of trade, commerce or manufacture. These words are of wide import the underlying idea being of continuos exercise of anpointed out by S. R. Das, J., (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 , at p.773= (AIR 1955 SC 176 at p. 181) the word "business" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose. The systematic or organised course of activity of the assessee, in the present case, consisted of dealings or taking of contract in bidi leaves. That business did not depend on the constitution of a partnership firm through which it was carried on nor could it come to an end so long as the assessee carried on the same systematic or organised course of activity with a set purpose.5. The computation of a partners share in the firms profits is dealt with by Section 16 (1) (b). The proviso thereto lays down that if his share was computed as a loss such loss may be set off or carried forward and set off in accordance with the provision of Section 24. Under Section 23 (5) when the assessee is a registered firm and the total income of the firm has been assessed under subsection (1), (3) or (4) as the case may be, the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. There is a proviso which says that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Section 24.The High Court was right in saying that when the profits of a registered firm are ascertained the assessee for the purpose of paying the tax is not the registered firm but each partner of that firm.firm.7. In our judgment there could be no manner of doubt that the business in which the loss had been sustained by the assessee when he was a partner of the first firm which was dissolved on March 31, 1955, continued to be carried on by him in partnership with three other persons during the assessment year 1956-57, the business, as stated before, being of dealing in or entering into contracts in respect of bidi leaves. The mode in which he carried on the businees in bidi leaves was one of taking other persons as partners. He did not stop doing that business in the assessment year in question.
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The Commissioner Of Income-Tax,Hyderabad-Deccan Vs. Messrs. Vazir Sultan & Sons | had continued then it is revenue. (Wiseburgh v. Domville, (1956) 36 Tax Cas 527). So that the decision as to whether compensation was capital or revenue would depend upon whether the cessation of the agency destroys or materially cripples the whole structure of the recipients profit making apparatus or whether the loss is of the whole or part of the framework of business.51. If we apply these tests to the agreement which has been terminated in the present case, it does not fall in any of the class of cases of destruction of a capital asset.52. For the appellant reliance was placed on the observations of Venkatarama Aiyar J., in 1959-35 ITR 148 at pp. 161, 163: (AIR 1959 SC 291 at pp. 297, 298) where it was pointed out that in an agency contract the actual business consists in the dealings between the principal and his customers and the work of the agent is only to bring about that business. In other words what the agent does is not business itself but something which is intimately and directly linked with it. But an examination of the context shows that that is not what these observations mean. The point that was to be decided in that case was whether a payment of compensation for the cancellation of a trading contract was a capital or revenue receipt, and dealing with decisions relating to the cancellation of agency contracts which were quoted in support of the contention that they were capital, the learned Judges observed that considerations applicable to agency contracts were inapplicable to trading contracts, because the two classes of contracts were essentially different, and these differences were there pointed out. The purpose of these observations was to show that receipts from trading contracts were revenue and not that receipts from agency contracts are capital. That that is the true scope of these observations is clear from the following passage:"In holding that compensation paid on the cancellation of a trading contract differs in character from compensation paid for cancellation of an agency contract, we should not be understood as deciding that the latter must always, and as a matter of law be held to be a capital receipt. Such a conclusion will be directly opposed to the decisions in Kelsalls case, (1938) 21 Tax Cas 608 and 1956 SCR 223: ( (S) AIR 1956 SC 492 ) The fact is that an agency contract which as the character of a capital asset in the hands of one person may assume the character of a trading receipt in the hands of another, as, for example, when the agent is found to make a trade of acquiring agencies and dealing with them."The Court there observed that when the assessee holds a number of agencies, the compensation paid for cancellation of any of them could be regarded as revenue receipt. This is inconsistent with the conclusion that an agency contract must always be regarded as a capital asset. The learned Judges further observed that they were not elaborating this part as they were there concerned with a trading contract and therefore the statement as to when receipts from agency contracts could be regarded as revenue receipts cannot be read as exhausting the circumstances under which they could be held to be revenue.53. As a matter of fact there are three kinds of cases of agencies shown by the decided cases: (1) Kelsall Parsons case (1938) 21 Tax Cas 608 where the recipient was carrying on several agencies and the test laid down was whether the business structure could absorb a shock of the termination of one. (2) The other is where the compensation is for a temporary and variable element of assessees profit making apparatus; MacDonalds case (1955) 36 Tax Cas 388. The third class of cases is represented by Inland Revenue Commrs. v. Fleming and Co. (Machinery), (1951) 33 Tax Cas 57 where the rights and advantages surrendered were such as to destroy or materially cripple the whole structure of the profit making apparatus.54. The agencies themselves are of different kinds: (1) where the agent himself carries on the business and sells the product of the principal and gets commission for it; (2) where the agents function is confined to bringing the principal and the customer together and he gets agency commission for the performance of only that service; (3) where the agent is a distributor and distributes the products of the principal through his subagents and charges commission for the distribution work. Cases (1) and (3) would not strictly fall within the scope of the observations in 1959-35 ITR 148 : (AIR 1959 SC 291 ) and case (2) would fall within the second class of agreements mentioned in Van Den Berghs case, (1935) 19 Tax Cas 390.55. The agreement which is now before us and which was surrendered was terminable at will. The amount of profit which the assessee made from working the agency contract in Hyderabad State alone was much more than the amount which the assessee received for the termination of the whole of their agency outside the State. Thus it is clear that the termination did not affect the trading activities of the assessees and therefore the termination of the contract viewed against the background of the assessees business organisation and profit-making structure appears to be no more than compensation for the loss of future profit and commission. The true effect of the facts of this case appears to be this that in 1939 the assessees area of distribution was increased from the State of Hyderabad to the whole of India and in 1950 it was again reduced to the original area of 1931. The assessees never lost their agency. As a result of this contraction of area they at the most have lost some agency commission. The compensation therefore was in the nature of surrogatum and in this view of the matter it is revenue and not capital.56. I would therefore allow this appeal with costs throughout. | 0[ds]35. In the case before us the agency agreement in respect of territory outside the Hyderabad State was as much an asset of the assessees business as the agency agreement within the Hyderabad State and though Ex-pansion of the territory of the agency in 1939 and the restriction thereof in 1950 could very well be treated as grant of additional territory in 1939 and the withdrawal thereof in 1950, both these agency agreements constituted but one employment of the assessee at the sole selling agents of the Company. There is nothing on the record to show that the acquisition of such agencies constituted the assessees business or that these agency agreements were entered into by the assessee in the carrying on of any such business.The agency agreements in fact formed a capital asset of the assessees business worked or exploited by the assessee by entering into contracts for the sale of the "charminar" cigarettes manufactured by the Company to the various customer and dealers in the respective territories. This asset really formed part of the fixed capital of the assessees business. It did not constitute the business of the assessee but was the means by which the assessee entered into the business transactions by way of distributing those cigarettes within the respective territories. It really formed the profit-making apparatus of the assessees business of distribution of the cigarettes manufactured by the Company. If it was thus neither circulating capital nor stock-in-trade of the business carried on by the assessee it could certainly not be anything but a capital asset of its business and any payment made by the Company as and by way of compensation for terminating or cancelling the same would only be a capital receipt in the hands of the assessee.36. It would not make the slightest difference for this purpose whether either one or both of the agency agreements were terminated or cancelled by the Company.The position would be the same in either event. As was observed by Lord Wrenbury in (1927) 12 Tax Cas 427 at p.matter may be regarded from another point of view; the right to work the area in which the working was to be abandoned was part of the capital asset consisting of the right to work the whole area demised. Had the abandonment extended to the whole area all subsequent profit by working would, of course have been impossible but it would be impossible to contend that the compensation would be other than capital. It was the price paid for sterilising the asset from which otherwise profit might have been obtained. What is true of the whole must be equally true of part.If both the agency agreements viz. one for the territory within the Hyderabad State and the other for the territory outside Hyderabad State had been terminated or cancelled on payment of compensation, the whole profit-making structure of the assessees business would have been destroyed. Even if one of these agency agreements was thus terminated, it would result in the destruction of the profit-making apparatus or sterilisation of the capital asset pro tanto, and if in the former case the receipt in the hands of the assessee would only be a capital receipt, equally would it be a capital receipt it compensation was obtained by the assessee for the termination or cancellation of one of these agency agreements which formed a capital asset of the assessees business.The facts of the present case are closely similar to those which obtained in 59 Ind App 206: (AIR 1932 PC 138 ). In that case also the assessees had for a number of years prior to 1928 acted as distributing agents in India of the Burma Oil Company and the Anglo-Persian Oil Company, but had no formal agreement with either Company. In or about the year 1927 the two companies combined and decided to make other arrangements for the distribution of their products. The assessees agency of the Burma Company was accordingly terminated on December 31, 1927, and that of the Anglo-Persian Company on June 30, following. Some time in the early part of 1928 the Burma Company paid to the assessee a sum of Rs. 12,00,000 "as full compensation for cessation of the agency" and in August of the same year the Anglo-Persian Company paid them another sum of Rs. 3,25,000 as "compensation for the loss of your office as agents to the company". On the facts and circumstances of the case the Privy Council came to the conclusion that the sums could only be taxable if they were the produce, or the result of, carrying on the agencies of the oil companies in the year in which they were receive by the assessees. But when once it was admitted that they were sums received, not for carrying on that business, but as some sort of solatium for its compulsory cessation, the answer seemed fairly plain.Whatever be the criticism in regard to the concept of income adopted in this case noted earlier in this judgment, the decision could just as well be supported on the grounds which we have hereinbefore discussed and was quite correct, the payments having been received by the assessees as and by way of compensation for the termination or cancellation of the agency agreements in question which were in fact the capital assets of the assessees business. | 0 | 11,141 | 943 | ### Instruction:
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had continued then it is revenue. (Wiseburgh v. Domville, (1956) 36 Tax Cas 527). So that the decision as to whether compensation was capital or revenue would depend upon whether the cessation of the agency destroys or materially cripples the whole structure of the recipients profit making apparatus or whether the loss is of the whole or part of the framework of business.51. If we apply these tests to the agreement which has been terminated in the present case, it does not fall in any of the class of cases of destruction of a capital asset.52. For the appellant reliance was placed on the observations of Venkatarama Aiyar J., in 1959-35 ITR 148 at pp. 161, 163: (AIR 1959 SC 291 at pp. 297, 298) where it was pointed out that in an agency contract the actual business consists in the dealings between the principal and his customers and the work of the agent is only to bring about that business. In other words what the agent does is not business itself but something which is intimately and directly linked with it. But an examination of the context shows that that is not what these observations mean. The point that was to be decided in that case was whether a payment of compensation for the cancellation of a trading contract was a capital or revenue receipt, and dealing with decisions relating to the cancellation of agency contracts which were quoted in support of the contention that they were capital, the learned Judges observed that considerations applicable to agency contracts were inapplicable to trading contracts, because the two classes of contracts were essentially different, and these differences were there pointed out. The purpose of these observations was to show that receipts from trading contracts were revenue and not that receipts from agency contracts are capital. That that is the true scope of these observations is clear from the following passage:"In holding that compensation paid on the cancellation of a trading contract differs in character from compensation paid for cancellation of an agency contract, we should not be understood as deciding that the latter must always, and as a matter of law be held to be a capital receipt. Such a conclusion will be directly opposed to the decisions in Kelsalls case, (1938) 21 Tax Cas 608 and 1956 SCR 223: ( (S) AIR 1956 SC 492 ) The fact is that an agency contract which as the character of a capital asset in the hands of one person may assume the character of a trading receipt in the hands of another, as, for example, when the agent is found to make a trade of acquiring agencies and dealing with them."The Court there observed that when the assessee holds a number of agencies, the compensation paid for cancellation of any of them could be regarded as revenue receipt. This is inconsistent with the conclusion that an agency contract must always be regarded as a capital asset. The learned Judges further observed that they were not elaborating this part as they were there concerned with a trading contract and therefore the statement as to when receipts from agency contracts could be regarded as revenue receipts cannot be read as exhausting the circumstances under which they could be held to be revenue.53. As a matter of fact there are three kinds of cases of agencies shown by the decided cases: (1) Kelsall Parsons case (1938) 21 Tax Cas 608 where the recipient was carrying on several agencies and the test laid down was whether the business structure could absorb a shock of the termination of one. (2) The other is where the compensation is for a temporary and variable element of assessees profit making apparatus; MacDonalds case (1955) 36 Tax Cas 388. The third class of cases is represented by Inland Revenue Commrs. v. Fleming and Co. (Machinery), (1951) 33 Tax Cas 57 where the rights and advantages surrendered were such as to destroy or materially cripple the whole structure of the profit making apparatus.54. The agencies themselves are of different kinds: (1) where the agent himself carries on the business and sells the product of the principal and gets commission for it; (2) where the agents function is confined to bringing the principal and the customer together and he gets agency commission for the performance of only that service; (3) where the agent is a distributor and distributes the products of the principal through his subagents and charges commission for the distribution work. Cases (1) and (3) would not strictly fall within the scope of the observations in 1959-35 ITR 148 : (AIR 1959 SC 291 ) and case (2) would fall within the second class of agreements mentioned in Van Den Berghs case, (1935) 19 Tax Cas 390.55. The agreement which is now before us and which was surrendered was terminable at will. The amount of profit which the assessee made from working the agency contract in Hyderabad State alone was much more than the amount which the assessee received for the termination of the whole of their agency outside the State. Thus it is clear that the termination did not affect the trading activities of the assessees and therefore the termination of the contract viewed against the background of the assessees business organisation and profit-making structure appears to be no more than compensation for the loss of future profit and commission. The true effect of the facts of this case appears to be this that in 1939 the assessees area of distribution was increased from the State of Hyderabad to the whole of India and in 1950 it was again reduced to the original area of 1931. The assessees never lost their agency. As a result of this contraction of area they at the most have lost some agency commission. The compensation therefore was in the nature of surrogatum and in this view of the matter it is revenue and not capital.56. I would therefore allow this appeal with costs throughout.
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35. In the case before us the agency agreement in respect of territory outside the Hyderabad State was as much an asset of the assessees business as the agency agreement within the Hyderabad State and though Ex-pansion of the territory of the agency in 1939 and the restriction thereof in 1950 could very well be treated as grant of additional territory in 1939 and the withdrawal thereof in 1950, both these agency agreements constituted but one employment of the assessee at the sole selling agents of the Company. There is nothing on the record to show that the acquisition of such agencies constituted the assessees business or that these agency agreements were entered into by the assessee in the carrying on of any such business.The agency agreements in fact formed a capital asset of the assessees business worked or exploited by the assessee by entering into contracts for the sale of the "charminar" cigarettes manufactured by the Company to the various customer and dealers in the respective territories. This asset really formed part of the fixed capital of the assessees business. It did not constitute the business of the assessee but was the means by which the assessee entered into the business transactions by way of distributing those cigarettes within the respective territories. It really formed the profit-making apparatus of the assessees business of distribution of the cigarettes manufactured by the Company. If it was thus neither circulating capital nor stock-in-trade of the business carried on by the assessee it could certainly not be anything but a capital asset of its business and any payment made by the Company as and by way of compensation for terminating or cancelling the same would only be a capital receipt in the hands of the assessee.36. It would not make the slightest difference for this purpose whether either one or both of the agency agreements were terminated or cancelled by the Company.The position would be the same in either event. As was observed by Lord Wrenbury in (1927) 12 Tax Cas 427 at p.matter may be regarded from another point of view; the right to work the area in which the working was to be abandoned was part of the capital asset consisting of the right to work the whole area demised. Had the abandonment extended to the whole area all subsequent profit by working would, of course have been impossible but it would be impossible to contend that the compensation would be other than capital. It was the price paid for sterilising the asset from which otherwise profit might have been obtained. What is true of the whole must be equally true of part.If both the agency agreements viz. one for the territory within the Hyderabad State and the other for the territory outside Hyderabad State had been terminated or cancelled on payment of compensation, the whole profit-making structure of the assessees business would have been destroyed. Even if one of these agency agreements was thus terminated, it would result in the destruction of the profit-making apparatus or sterilisation of the capital asset pro tanto, and if in the former case the receipt in the hands of the assessee would only be a capital receipt, equally would it be a capital receipt it compensation was obtained by the assessee for the termination or cancellation of one of these agency agreements which formed a capital asset of the assessees business.The facts of the present case are closely similar to those which obtained in 59 Ind App 206: (AIR 1932 PC 138 ). In that case also the assessees had for a number of years prior to 1928 acted as distributing agents in India of the Burma Oil Company and the Anglo-Persian Oil Company, but had no formal agreement with either Company. In or about the year 1927 the two companies combined and decided to make other arrangements for the distribution of their products. The assessees agency of the Burma Company was accordingly terminated on December 31, 1927, and that of the Anglo-Persian Company on June 30, following. Some time in the early part of 1928 the Burma Company paid to the assessee a sum of Rs. 12,00,000 "as full compensation for cessation of the agency" and in August of the same year the Anglo-Persian Company paid them another sum of Rs. 3,25,000 as "compensation for the loss of your office as agents to the company". On the facts and circumstances of the case the Privy Council came to the conclusion that the sums could only be taxable if they were the produce, or the result of, carrying on the agencies of the oil companies in the year in which they were receive by the assessees. But when once it was admitted that they were sums received, not for carrying on that business, but as some sort of solatium for its compulsory cessation, the answer seemed fairly plain.Whatever be the criticism in regard to the concept of income adopted in this case noted earlier in this judgment, the decision could just as well be supported on the grounds which we have hereinbefore discussed and was quite correct, the payments having been received by the assessees as and by way of compensation for the termination or cancellation of the agency agreements in question which were in fact the capital assets of the assessees business.
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M. Marathachalam Pillai Vs. Padmavathi Ammal and Others | against Pillai holding that the house had been properly attached and the sale being contrary to the attachment levied by Pillai was void against all claims thereunder. In appeal the High Court of Madras held that the attachment was not made according to law, since the requirements of Order 21, Rule 54, Code of Civil Procedure had not been complied with. The High Court reserved the decree, and decreed Padmavathis suit. Pillai has filed this appeal with certificate granted by the High Court. Section 64 of the Code of Civil Procedure provides : "Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation. - ... ... ..." 2. When property is attached in execution of a decree, any private transfer of that property contrary to such attachment is by Section 64 declared void as against all claims enforceable under the attachment. For the bar of Section 64 to operate, there must however be an effective attachment. Under Order 21, Rule 54, Code of Civil procedure (as modified by the High Court of Madras) reads as follows :" (1) Where the property is immovable the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on conspicuous part of the Court house. Where the property is land paying revenue to the Government a copy of the order shall be similarly affixed in the office of the Collector of the district where the land is situated. Where the property is situated within the Cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the Military estate officers concerned, and where the property is situated within the limits of the Municipality, in the office of the Municipality within the limits of which the property is situated. (3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2) whichever is the earlier." 3. The rule requires that the attachment shall be proclaimed at some place on or adjacent to the property by beat of drum or other customary mode; a copy of the order shall be affixed on a conspicuous part of the property and where the property is situated within the limits of a Municipality a copy of the order shall be affixed in the office of the Municipality within the limits of which the property is situated. The High Court of Madras held that there had been no effective attachment because there had been no proclamation by beat of drum as required by sub-rule (2) of Rule 54 of Order 21, and a copy of the order was not affixed in the office of the Municipality. 4. In support of the case that there had been an effective attachment by proclamation by beat of drum, Pillai examined the Amin of the Court D.W. 1, and his own son Vishwanathan, D.W. 6. He relied upon the report, dated August 7, 1956. Padmavathi examined in support of her case, that there had been no proclamation by beat of drum, R.F. Stoney P.W. 1 a tenant of the house and L. Joseph-Stoneys Secretary and motordriver. On a review of the evidence, the High Court was of the opinion that the testimony of the Amin was unreliable on account of several infirmities and inconsistencies. The High Court pointed out that Pillai who was present and who had signed the Amins report of attachment did not enter the witness box. No witnesses from the locality were examined by Pillai. 5. The High Court was impressed by the testimony of R.F. Stoney who is a retired Engineer and his driver L. Joseph. It is true that there is on the record the report of the Amin which purports to bear the signatures of as many as 12 persons in acknowledgment of attachment being effected by the proclamation by beat of drum. But none of those witnesses has been examined. We have been taken and Vishwanathan, son of Pillai. On a consideration of the evidence, we do not see any reason to disagree with the High Court that no attachment was levied as required by law. Relying upon Section 64, Code of Civil procedure the private transfer of property in favour of Padmavathi cannot be deemed to be void as against the claims enforcement under the attachment of the property by Pillai.6. But Mr. Chagla appearing on behalf of Pillai raised an alternative contention. He said that at the time of sale there was another outstanding attachment and the sale in favour of padmavathi being contrary to such attachment was, in any event, void. It appears that on January 17, 1956, Pillai had in execution of a decree obtained in Suit No. 55 of 1953, attached the property, but that attachment was removed on March 23, 1957, on satisfaction of the decree. By Section 64, Code of Civil Procedure, the attachment is only void as against all claims enforceable under the attachment, and it is not void generally. Since the attachment effected on January 17, 1956 was removed, any private alienation contrary to such attachment cannot be regarded as void for there are no claims enforceable under the attachment, dated January 17, 1956. | 0[ds]5. The High Court was impressed by the testimony of R.F. Stoney who is a retired Engineer and his driver L. Joseph. It is true that there is on the record the report of the Amin which purports to bear the signatures of as many as 12 persons in acknowledgment of attachment being effected by the proclamation by beat of drum. But none of those witnesses has been examined. We have been taken and Vishwanathan, son of Pillai. On a consideration of the evidence, we do not see any reason to disagree with the High Court that no attachment was levied as required by law. Relying upon Section 64, Code of Civil procedure the private transfer of property in favour of Padmavathi cannot be deemed to be void as against the claims enforcement under the attachment of the property by Pillai.6. But Mr. Chagla appearing on behalf of Pillai raised an alternative contention. He said that at the time of sale there was another outstanding attachment and the sale in favour of padmavathi being contrary to such attachment was, in any event, void.It appears that on January 17, 1956, Pillai had in execution of a decree obtained in Suit No. 55 of 1953, attached the property, but that attachment was removed on March 23, 1957, on satisfaction of the decree. By Section 64, Code of Civil Procedure, the attachment is only void as against all claims enforceable under the attachment, and it is not void generally. Since the attachment effected on January 17, 1956 was removed, any private alienation contrary to such attachment cannot be regarded as void for there are no claims enforceable under the attachment, dated January 17, 1956. | 0 | 1,266 | 318 | ### 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:
against Pillai holding that the house had been properly attached and the sale being contrary to the attachment levied by Pillai was void against all claims thereunder. In appeal the High Court of Madras held that the attachment was not made according to law, since the requirements of Order 21, Rule 54, Code of Civil Procedure had not been complied with. The High Court reserved the decree, and decreed Padmavathis suit. Pillai has filed this appeal with certificate granted by the High Court. Section 64 of the Code of Civil Procedure provides : "Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation. - ... ... ..." 2. When property is attached in execution of a decree, any private transfer of that property contrary to such attachment is by Section 64 declared void as against all claims enforceable under the attachment. For the bar of Section 64 to operate, there must however be an effective attachment. Under Order 21, Rule 54, Code of Civil procedure (as modified by the High Court of Madras) reads as follows :" (1) Where the property is immovable the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on conspicuous part of the Court house. Where the property is land paying revenue to the Government a copy of the order shall be similarly affixed in the office of the Collector of the district where the land is situated. Where the property is situated within the Cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the Military estate officers concerned, and where the property is situated within the limits of the Municipality, in the office of the Municipality within the limits of which the property is situated. (3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2) whichever is the earlier." 3. The rule requires that the attachment shall be proclaimed at some place on or adjacent to the property by beat of drum or other customary mode; a copy of the order shall be affixed on a conspicuous part of the property and where the property is situated within the limits of a Municipality a copy of the order shall be affixed in the office of the Municipality within the limits of which the property is situated. The High Court of Madras held that there had been no effective attachment because there had been no proclamation by beat of drum as required by sub-rule (2) of Rule 54 of Order 21, and a copy of the order was not affixed in the office of the Municipality. 4. In support of the case that there had been an effective attachment by proclamation by beat of drum, Pillai examined the Amin of the Court D.W. 1, and his own son Vishwanathan, D.W. 6. He relied upon the report, dated August 7, 1956. Padmavathi examined in support of her case, that there had been no proclamation by beat of drum, R.F. Stoney P.W. 1 a tenant of the house and L. Joseph-Stoneys Secretary and motordriver. On a review of the evidence, the High Court was of the opinion that the testimony of the Amin was unreliable on account of several infirmities and inconsistencies. The High Court pointed out that Pillai who was present and who had signed the Amins report of attachment did not enter the witness box. No witnesses from the locality were examined by Pillai. 5. The High Court was impressed by the testimony of R.F. Stoney who is a retired Engineer and his driver L. Joseph. It is true that there is on the record the report of the Amin which purports to bear the signatures of as many as 12 persons in acknowledgment of attachment being effected by the proclamation by beat of drum. But none of those witnesses has been examined. We have been taken and Vishwanathan, son of Pillai. On a consideration of the evidence, we do not see any reason to disagree with the High Court that no attachment was levied as required by law. Relying upon Section 64, Code of Civil procedure the private transfer of property in favour of Padmavathi cannot be deemed to be void as against the claims enforcement under the attachment of the property by Pillai.6. But Mr. Chagla appearing on behalf of Pillai raised an alternative contention. He said that at the time of sale there was another outstanding attachment and the sale in favour of padmavathi being contrary to such attachment was, in any event, void. It appears that on January 17, 1956, Pillai had in execution of a decree obtained in Suit No. 55 of 1953, attached the property, but that attachment was removed on March 23, 1957, on satisfaction of the decree. By Section 64, Code of Civil Procedure, the attachment is only void as against all claims enforceable under the attachment, and it is not void generally. Since the attachment effected on January 17, 1956 was removed, any private alienation contrary to such attachment cannot be regarded as void for there are no claims enforceable under the attachment, dated January 17, 1956.
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0
### Explanation:
5. The High Court was impressed by the testimony of R.F. Stoney who is a retired Engineer and his driver L. Joseph. It is true that there is on the record the report of the Amin which purports to bear the signatures of as many as 12 persons in acknowledgment of attachment being effected by the proclamation by beat of drum. But none of those witnesses has been examined. We have been taken and Vishwanathan, son of Pillai. On a consideration of the evidence, we do not see any reason to disagree with the High Court that no attachment was levied as required by law. Relying upon Section 64, Code of Civil procedure the private transfer of property in favour of Padmavathi cannot be deemed to be void as against the claims enforcement under the attachment of the property by Pillai.6. But Mr. Chagla appearing on behalf of Pillai raised an alternative contention. He said that at the time of sale there was another outstanding attachment and the sale in favour of padmavathi being contrary to such attachment was, in any event, void.It appears that on January 17, 1956, Pillai had in execution of a decree obtained in Suit No. 55 of 1953, attached the property, but that attachment was removed on March 23, 1957, on satisfaction of the decree. By Section 64, Code of Civil Procedure, the attachment is only void as against all claims enforceable under the attachment, and it is not void generally. Since the attachment effected on January 17, 1956 was removed, any private alienation contrary to such attachment cannot be regarded as void for there are no claims enforceable under the attachment, dated January 17, 1956.
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Hindustan Aeronautics Ltd Vs. Dan Bahadur Singh | Devi (2006) 4 SCC 1 (para 16). It was emphasized here that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. 14. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 it was held that the completion of 240 days work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board & Anr. v. Manoj Shrivastava (2006) 2 SCC 702 ( paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408 and paragraphs 34 and 35 of the reports are being reproduced below:- 34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time. 35. In Dr. Surinder Singh Jamwal and Anr. v. State of Jammu & Kashmir and Ors. AIR 1996 SC 2775 , it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules. 15. In the judgment under challenge the High Court has issued a direction to absorb the members of the respondent union as regular employees or such of them as may be required to do the quantum of work which may be available on perennial basis and has issued a further direction that they will be paid the wages of regular employees. It has also been directed that such of the members of the respondent union who are not absorbed as regular employees shall not be disengaged and shall be allowed to continue as per settlement dated 26.7.1995 and shall be regularized as and when the perennial work is available. The direction issued by the High Court in effect has two components i.e. creation of posts and also payment of regular salary as in absence of a post being available a daily wager cannot be absorbed as a regular employee of the establishment. This very question has been considered in Indian Drugs & Pharmaceuticals Ltd. (supra) and, therefore, we do not consider it necessary to refer to the various reasons given and decisions cited therein. Paras 37, 38 and 47 of the reports, wherein the Bench recorded its conclusions read as under :- "37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi v. Accountant General, Ahmedabad and Ors. (2003) 2 SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.38. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.47. We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 , and other decisions of this Court." 16. In view of the discussion made above, the impugned judgment of the learned Single Judge which was affirmed in appeal by the Division Bench cannot be sustained and has to be set aside. The respondents are not entitled to the relief claimed by them. | 1[ds]It was emphasized here that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.In the judgment under challenge the High Court has issued a direction to absorb the members of the respondent union as regular employees or such of them as may be required to do the quantum of work which may be available on perennial basis and has issued a further direction that they will be paid the wages of regular employees. It has also been directed that such of the members of the respondent union who are not absorbed as regular employees shall not be disengaged and shall be allowed to continue as per settlement dated 26.7.1995 and shall be regularized as and when the perennial work is available. The direction issued by the High Court in effect has two components i.e. creation of posts and also payment of regular salary as in absence of a post being available a daily wager cannot be absorbed as a regular employee of the establishment. This very question has been considered in Indian Drugs & Pharmaceuticals Ltd. (supra) and, therefore, we do not consider it necessary to refer to the various reasons given and decisions cited therein.In view of the discussion made above, the impugned judgment of the learned Single Judge which was affirmed in appeal by the Division Bench cannot be sustained and has to be set aside. The respondents are not entitled to the relief claimed by them. | 1 | 4,387 | 451 | ### 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:
Devi (2006) 4 SCC 1 (para 16). It was emphasized here that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. 14. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 it was held that the completion of 240 days work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board & Anr. v. Manoj Shrivastava (2006) 2 SCC 702 ( paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408 and paragraphs 34 and 35 of the reports are being reproduced below:- 34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time. 35. In Dr. Surinder Singh Jamwal and Anr. v. State of Jammu & Kashmir and Ors. AIR 1996 SC 2775 , it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules. 15. In the judgment under challenge the High Court has issued a direction to absorb the members of the respondent union as regular employees or such of them as may be required to do the quantum of work which may be available on perennial basis and has issued a further direction that they will be paid the wages of regular employees. It has also been directed that such of the members of the respondent union who are not absorbed as regular employees shall not be disengaged and shall be allowed to continue as per settlement dated 26.7.1995 and shall be regularized as and when the perennial work is available. The direction issued by the High Court in effect has two components i.e. creation of posts and also payment of regular salary as in absence of a post being available a daily wager cannot be absorbed as a regular employee of the establishment. This very question has been considered in Indian Drugs & Pharmaceuticals Ltd. (supra) and, therefore, we do not consider it necessary to refer to the various reasons given and decisions cited therein. Paras 37, 38 and 47 of the reports, wherein the Bench recorded its conclusions read as under :- "37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi v. Accountant General, Ahmedabad and Ors. (2003) 2 SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.38. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.47. We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 , and other decisions of this Court." 16. In view of the discussion made above, the impugned judgment of the learned Single Judge which was affirmed in appeal by the Division Bench cannot be sustained and has to be set aside. The respondents are not entitled to the relief claimed by them.
### Response:
1
### Explanation:
It was emphasized here that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.In the judgment under challenge the High Court has issued a direction to absorb the members of the respondent union as regular employees or such of them as may be required to do the quantum of work which may be available on perennial basis and has issued a further direction that they will be paid the wages of regular employees. It has also been directed that such of the members of the respondent union who are not absorbed as regular employees shall not be disengaged and shall be allowed to continue as per settlement dated 26.7.1995 and shall be regularized as and when the perennial work is available. The direction issued by the High Court in effect has two components i.e. creation of posts and also payment of regular salary as in absence of a post being available a daily wager cannot be absorbed as a regular employee of the establishment. This very question has been considered in Indian Drugs & Pharmaceuticals Ltd. (supra) and, therefore, we do not consider it necessary to refer to the various reasons given and decisions cited therein.In view of the discussion made above, the impugned judgment of the learned Single Judge which was affirmed in appeal by the Division Bench cannot be sustained and has to be set aside. The respondents are not entitled to the relief claimed by them.
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D. R. Gurushantappa Vs. Abdul Khuddus Anwar & Ors | election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification, even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The Company in the present case, no doubt, did come under the control of the Government and respondent No. 1 was holding an office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under Articles 191 (1) (a) of the Constitution was not intended to apply to the holder of such an office of profit.12. It also appears to us that it was in view of this limited application of the disqualification laid down in Arts. 102(1)(a) and 191 (1) (a) of the Constitution that Parliament made an additional provision in Section 10 of the Act by laying down that "a person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share." It is to be noted that the Parliament, in enacting this section, limited the disqualification to a person holding the office of a managing agent, manager or secretary of a company and not to other employees of the Company. This provision, thus, gives two indications as to the scope of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution.One is that the holding of an office in a company, in the capital of which the Government has not less than 25% share is not covered by the disqualifications laid down in Articles 102 (1) (a) and 191 (1) (a) as, otherwise, this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company.The fact that the entire share capital in the Company in the case before us is owned by the Government does not, in our opinion, make any difference. Under the Articles of Association, it is clear that, though, initially, all shares were held by the Government, it is possible that private citizens may also hold shares in the Company. In fact there are provisions indicating that shares held by certain shareholders can pass by succession to members of their family or can even be transferred by gift to them. The Articles of Association lay down that the Company shall be private limited company within the meaning of the Indian Companies Act, 1956, and though the shares in the capital of the Company are under the control of the Board of Directors, they have been given the liberty to allot, grant option over or otherwise dispose of the shares at such time and to such persons, and in such manner and upon such terms as they may think proper. Under this power, the Directors can allot shares to private individuals. It is under Article 34 of the Articles of Association that a shareholder is given the power by way of gift for or without any pecuniary consideration, to transfer any share in the capital of the Company to the wife or husband of such member, or to a son, daughter father, mother, grandson, grand-daughter, brother, sister, nephew, or niece of such member or the wife or husband of any person standing in such relationship to the transferring member. Devolution of shares, consequent to the death of a member, on his heirs is also recognised by the Articles of Association.In these circumstances, the principles which will apply to the Company will be on a par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its directors or the Managing Director over respondent No. 1 cannot be held to be control exercised by the Government.13. Mr. Gupte, in this connection, also urged that we should pierce the veil of the Company being a separate juristic and legal entity, apart from the Government which owns all the shares in the Company, and hold that, in fact the Company should be equated with the Government of Mysore itself. In our opinion, in the present case, no question of piercing the veil can arise in view of the provisions of section 10 of the Act which specifically deals with disqualification for membership of persons holding offices under a Company in which a Government holds shares. That section limits the scope of disqualification to holders of three particular offices only and in companies in which the share-holding of the Government is not less than 25 per cent.This provision clearly indicates that, for purposes of determining disqualification for candidature to a Legislature, it would not be appropriate to attempt to lift the veil and equate a Company with the Government merely because the share-capital of the Company is contributed by the Government. The discussion of the relevant Constitutional provisions above also supports this view.In the present case, therefore, respondent No. 1 cannot be held to be holding an office of profit under the Government of Mysore and was not disqualified from being chosen as a member of the Assembly of State. | 0[ds]3. So far as the first point is concerned, reliance is placed primarily of the circumstance that when the concern was taken over by the Company from the Government, there were no specific agreements terminating the government service of respondent No. 1 or brining into assistance a relationship of master and servant between the Company and respondent No. 1.That circumstance, by itself, cannot lead to the conclusion that respondent No. 1 continued to be in government service. When the undertaking was taken over by the Company as a going concern, the employees working in the undertaking were also taken over and since, in law the Company has to be treated as an entity district and separate from the Government, the employees, as a result of the transfer of the undertaking because employees of the Company and ceased to be employees of the Government. This position is very clear at least in the case of those employees who were covered by the definition of workmen under the Industrial Disputes Act in whose cases, on the transfer of the undertaking the provisions of Section 25FF of that Act would apply.Respondent No. 1 was a workman at the time of the transfer of the undertaking in the year 1962, because he was holding the post of an Assistant Superintendent and was drawing a salary below Rs. 500/- per mensem.As a workman, he would, under S. 25FF of the industrial Disputes Act, become an employee of the new employer, viz., the Company, which took over the undertaking from the Mysore Government which was the previous employer. In view of this provision of law, there was, in fact, no need for any specific contract being entered into between the Mysore Government and respondent No. 1 terminating his government service, nor was there any need for a fresh contract being entered into between the company and respondent No. 1 to make him an employee of the Company.4. This position is further clarified by the circumstance that, after the undertaking was taken over by the Company, the employees, who were workmen, were no longer governed by the Mysore Civil Service Regulations. Their conditions of service were determined by the Standing Orders of the Company which were certified underthe Industrial Employment (Standing Orders) Act, 1946. These Standing Orders even referred to certain employees as "lent Officers." The reference was obvisously to persons who continued to be in the Government service, but, whose services were lent to the Company. It was conceded in the present case that respondent No. 1 was not a lent officer as envisaged by that expression used in the Standing Orders.5. Respondent No. 1 further came to be governed by the Works Service Rules. It is true that, under the Articles of Association, the Governor had the power to lay down conditions of service of the employees of the Company; but that cannot mean that the employees of the Company continued to be in the service of the Government. Reliance in this connection was also placed on behalf of the appellant on the fact that the name of respondent No. 1 appeared in the Mysore Civil List under the heading "Iron and Steel Ltd., Bhadrawati" from which an inference was sought to be drawn that respondent No. 1 must have continued in Government service, as, otherwise, his name would not have been included in the Civil List.The mere inclusion in the Civil List of the name of a person cannot be held to prove that that person is in the service of the Government, unless evidence is tendered to show the circumstances under which the name was included in the Civil List and to exclude the possibility of names of persons other than those in government service being included in the Civil List. No such evidence was given in this case.On the other hand, the same Civil List shows that even the names of certain employees of the Universities in the State are also included in it, and, on the face of it, University employees could not be held to be in Government service. The Civil List relied upon clearly is not confirmed to names of persons in Mysore Government service only, so that this piece of evidence relied on by the appellant also does not establish that respondent No. 1 continued to be in government service after the undertaking was taken over by the Company.6. Finally, there is the circumstance that it is not shown that, after the undertaking was taken over by the Company, respondent No.1 continued to hold a lien on any Government post. In fact, the post, which he was holding while the concern was being run by the Mysore Government, ceased to be a Government post on the transfer of the undertaking to the Company and became a post under the Company, so that respondent No. 1 ceased to be in government service by continuing in that post.The first contention raised on behalf of the appellant, therefore, fails.7. On the second contention that, even if respondent No. 1 was not holding a government post, he must be held to be holding an office of profit under the Government, Mr. Gupte relied on the principles laid down by this Court in Gurugobinda Basu v. Sankari Prasad Ghosal, 1964-4 SCR 311 =(AIR 1964 SC 254 ). The Court in that case brought out the distinction between an office of profit under the Government and a post in the service of the Government byagree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government; see Articles 309 and 314. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of Government; sce Arts. 58 (2) and 66(4)."The Court then proceeded to consider the earlier decision in the case of Abdul Shakur v. Rikhab Chand, 1958 SCR 387 = (AIR 1958 SC 52 ) andis clear from the aforesaid observations that in Abdul Shakurs case, 1958 SCR 387 =(AIR 1958 SC 52 ) (supra), the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government Revenues, though it was pointed out that payment from a source other than Government Revenues was not always a decisivethis reference to Abdul Shakurs case 1958 SCR 387 =(AIR 1958 SC 52 ) (supra), the Court proceeded to apply the principles to the facts of the case before it. In that case, the question was whether the appellant was holding an office of profit, under the Government of India. It was pointed out that the appointment of the appellant as also his continuance in office rested solely with the Government of India in respect of the two Companies for which he was employed as an Auditor. His remuneration was also fixed by the Government. The Court assumed for the purposes of the appeal that the two Companies were statutory bodies distinct from Government, but noted the fact that, at the same time, they were Government Companies within the meaning of the Indian Companies Act. Emphasis was laid on the circumstance that, in the performance of his functions, the appellant was controlled by the Comptroller and Auditor-General who himself was undoubtedly holder of an office of profit under the Government, though there were safeguards in the Constitution as to the tenure of his office and removability therefrom. Under Art. 148 of the Constitution, the Comptroller and Auditor-General was appointed by the President and he could be removed from office in like manner and on the like grounds as a Judge of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General were to be such as might be determined by Parliament by law and until they were so determined, they were to be as specified in the Second Schedule to the Constitution. Other provisions relating to the Comptroller and Auditor-General were also taken notice of and an inference was drawn from these provisions that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President, and his administrative powers are such as may be prescribed by the rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. The Court thenif we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant, as the holder of an office of profit in the two Government companies the Durgapur Projects Ltd., and the Hindustan Steel Ltd., is really under the Government of India: he is appointed by the Government of India: he is removable from office by the Government of India: he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.Thereafter, the Court proceeded toview of these decisions, we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question - the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier, whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.Mr. Gupte, from these views expressed by the Court, sought to draw the inference that the primary consideration for determining whether a person holds an office of profit under a Government is the amount of control which the Government exercises over that officer. In the present case, he relied on the circumstance that all the shares of the Company are not only owned by the Mysore Government, but the Directors of the Company are appointed by the Government a Minister was one of the first Directors of the Company; the appointment of the Secretary to the Company is subject to approval of the Government; and, even in the general working of the Company, Government has the power to issue directions to the Directors which must be carried out by them. It was urged that respondent No. 1 was directly under the control of the Managing Director who is himself appointed by the Government and may even be a lent officer holding a permanent post under the Government. Respondent No. 1, thus, must be held to be working under the control of the Government exercised through the Managing Director.10. We are unable to accept the proposition that the mere fact that the Government had control over the Managing Director and other Directors as well as the power of issuing directions relating to the working of the company can lead to the inference that every employee of Company is under the control of the Government.The power of appointment and dismissal of respondent No. 1 vested in the Managing Director of the Company and not in the Government. Even the directions for the day-to-day work to be performed by respondent No. 1 could only be issued by the Managing Director of the Company and not by the Government.The indirect control of the Government which might arise because of the power of the Government to appoint the Managing Director and to issue directions to the Company in its general working does not bring respondent No.1 directly under the control of the Government.In Gurugobinda Basus case 1964-4 SCR 311 = (AIR 1964 SC 254 ) (Supra) the position was quite different. In that case, the appellant was appointed by the Government and was liable to be dismissed by the Government. His day-today working was controlled by the comptroller and Auditor-General who was a servant of the Government and was not in any way an office-bearer of the two Companies concerned. In fact the court had no hesitation in holding that the appellant in that case was holding an office of profit under the Government because the Court found that the several elements which existed were the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration. All these elements being present, the Court did not find any difficulty in finding that the appellant was holding an office of profit under the Government. In the case before us, the position is quite different. The power to appoint and dismiss respondent No.1 does not vest in the Government or in any government servant. The power to control and give directions as to the manner in which the duties of the office are to be performed by respondent No. 1 also does not vest in the Government, but in an officer of the Company. Even the power to determine the question of remuneration payable to respondent No.1 is not vested in the Government which can only lay down rules relating to the conditions of service of the employees of the Company.We are unable to agree that, in these circumstances, the indirect control exercisable by the Government because of its power to appoint the Directors and to give general directions to the Company can be held to make the post of Superintendent, Safety Engineering Department, an office of profit under Government.It also appears to us that it was in view of this limited application of the disqualification laid down in Arts. 102(1)(a) and 191 (1) (a) of the Constitution that Parliament made an additional provision in Section 10 of the Act by laying down that "a person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share." It is to be noted that the Parliament, in enacting this section, limited the disqualification to a person holding the office of a managing agent, manager or secretary of a company and not to other employees of the Company. This provision, thus, gives two indications as to the scope of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution.One is that the holding of an office in a company, in the capital of which the Government has not less than 25% share is not covered by the disqualifications laid down in Articles 102 (1) (a) and 191 (1) (a) as, otherwise, this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company.The fact that the entire share capital in the Company in the case before us is owned by the Government does not, in our opinion, make any difference. Under the Articles of Association, it is clear that, though, initially, all shares were held by the Government, it is possible that private citizens may also hold shares in the Company. In fact there are provisions indicating that shares held by certain shareholders can pass by succession to members of their family or can even be transferred by gift to them. The Articles of Association lay down that the Company shall be private limited company within the meaning of the Indian Companies Act, 1956, and though the shares in the capital of the Company are under the control of the Board of Directors, they have been given the liberty to allot, grant option over or otherwise dispose of the shares at such time and to such persons, and in such manner and upon such terms as they may think proper. Under this power, the Directors can allot shares to private individuals. It is under Article 34 of the Articles of Association that a shareholder is given the power by way of gift for or without any pecuniary consideration, to transfer any share in the capital of the Company to the wife or husband of such member, or to a son, daughter father, mother, grandson, grand-daughter, brother, sister, nephew, or niece of such member or the wife or husband of any person standing in such relationship to the transferring member. Devolution of shares, consequent to the death of a member, on his heirs is also recognised by the Articles of Association.In these circumstances, the principles which will apply to the Company will be on a par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its directors or the Managing Director over respondent No. 1 cannot be held to be control exercised by the Government. | 0 | 5,318 | 3,418 | ### Instruction:
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election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification, even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The Company in the present case, no doubt, did come under the control of the Government and respondent No. 1 was holding an office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under Articles 191 (1) (a) of the Constitution was not intended to apply to the holder of such an office of profit.12. It also appears to us that it was in view of this limited application of the disqualification laid down in Arts. 102(1)(a) and 191 (1) (a) of the Constitution that Parliament made an additional provision in Section 10 of the Act by laying down that "a person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share." It is to be noted that the Parliament, in enacting this section, limited the disqualification to a person holding the office of a managing agent, manager or secretary of a company and not to other employees of the Company. This provision, thus, gives two indications as to the scope of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution.One is that the holding of an office in a company, in the capital of which the Government has not less than 25% share is not covered by the disqualifications laid down in Articles 102 (1) (a) and 191 (1) (a) as, otherwise, this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company.The fact that the entire share capital in the Company in the case before us is owned by the Government does not, in our opinion, make any difference. Under the Articles of Association, it is clear that, though, initially, all shares were held by the Government, it is possible that private citizens may also hold shares in the Company. In fact there are provisions indicating that shares held by certain shareholders can pass by succession to members of their family or can even be transferred by gift to them. The Articles of Association lay down that the Company shall be private limited company within the meaning of the Indian Companies Act, 1956, and though the shares in the capital of the Company are under the control of the Board of Directors, they have been given the liberty to allot, grant option over or otherwise dispose of the shares at such time and to such persons, and in such manner and upon such terms as they may think proper. Under this power, the Directors can allot shares to private individuals. It is under Article 34 of the Articles of Association that a shareholder is given the power by way of gift for or without any pecuniary consideration, to transfer any share in the capital of the Company to the wife or husband of such member, or to a son, daughter father, mother, grandson, grand-daughter, brother, sister, nephew, or niece of such member or the wife or husband of any person standing in such relationship to the transferring member. Devolution of shares, consequent to the death of a member, on his heirs is also recognised by the Articles of Association.In these circumstances, the principles which will apply to the Company will be on a par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its directors or the Managing Director over respondent No. 1 cannot be held to be control exercised by the Government.13. Mr. Gupte, in this connection, also urged that we should pierce the veil of the Company being a separate juristic and legal entity, apart from the Government which owns all the shares in the Company, and hold that, in fact the Company should be equated with the Government of Mysore itself. In our opinion, in the present case, no question of piercing the veil can arise in view of the provisions of section 10 of the Act which specifically deals with disqualification for membership of persons holding offices under a Company in which a Government holds shares. That section limits the scope of disqualification to holders of three particular offices only and in companies in which the share-holding of the Government is not less than 25 per cent.This provision clearly indicates that, for purposes of determining disqualification for candidature to a Legislature, it would not be appropriate to attempt to lift the veil and equate a Company with the Government merely because the share-capital of the Company is contributed by the Government. The discussion of the relevant Constitutional provisions above also supports this view.In the present case, therefore, respondent No. 1 cannot be held to be holding an office of profit under the Government of Mysore and was not disqualified from being chosen as a member of the Assembly of State.
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to be performed by respondent No. 1 could only be issued by the Managing Director of the Company and not by the Government.The indirect control of the Government which might arise because of the power of the Government to appoint the Managing Director and to issue directions to the Company in its general working does not bring respondent No.1 directly under the control of the Government.In Gurugobinda Basus case 1964-4 SCR 311 = (AIR 1964 SC 254 ) (Supra) the position was quite different. In that case, the appellant was appointed by the Government and was liable to be dismissed by the Government. His day-today working was controlled by the comptroller and Auditor-General who was a servant of the Government and was not in any way an office-bearer of the two Companies concerned. In fact the court had no hesitation in holding that the appellant in that case was holding an office of profit under the Government because the Court found that the several elements which existed were the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration. All these elements being present, the Court did not find any difficulty in finding that the appellant was holding an office of profit under the Government. In the case before us, the position is quite different. The power to appoint and dismiss respondent No.1 does not vest in the Government or in any government servant. The power to control and give directions as to the manner in which the duties of the office are to be performed by respondent No. 1 also does not vest in the Government, but in an officer of the Company. Even the power to determine the question of remuneration payable to respondent No.1 is not vested in the Government which can only lay down rules relating to the conditions of service of the employees of the Company.We are unable to agree that, in these circumstances, the indirect control exercisable by the Government because of its power to appoint the Directors and to give general directions to the Company can be held to make the post of Superintendent, Safety Engineering Department, an office of profit under Government.It also appears to us that it was in view of this limited application of the disqualification laid down in Arts. 102(1)(a) and 191 (1) (a) of the Constitution that Parliament made an additional provision in Section 10 of the Act by laying down that "a person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share." It is to be noted that the Parliament, in enacting this section, limited the disqualification to a person holding the office of a managing agent, manager or secretary of a company and not to other employees of the Company. This provision, thus, gives two indications as to the scope of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution.One is that the holding of an office in a company, in the capital of which the Government has not less than 25% share is not covered by the disqualifications laid down in Articles 102 (1) (a) and 191 (1) (a) as, otherwise, this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company.The fact that the entire share capital in the Company in the case before us is owned by the Government does not, in our opinion, make any difference. Under the Articles of Association, it is clear that, though, initially, all shares were held by the Government, it is possible that private citizens may also hold shares in the Company. In fact there are provisions indicating that shares held by certain shareholders can pass by succession to members of their family or can even be transferred by gift to them. The Articles of Association lay down that the Company shall be private limited company within the meaning of the Indian Companies Act, 1956, and though the shares in the capital of the Company are under the control of the Board of Directors, they have been given the liberty to allot, grant option over or otherwise dispose of the shares at such time and to such persons, and in such manner and upon such terms as they may think proper. Under this power, the Directors can allot shares to private individuals. It is under Article 34 of the Articles of Association that a shareholder is given the power by way of gift for or without any pecuniary consideration, to transfer any share in the capital of the Company to the wife or husband of such member, or to a son, daughter father, mother, grandson, grand-daughter, brother, sister, nephew, or niece of such member or the wife or husband of any person standing in such relationship to the transferring member. Devolution of shares, consequent to the death of a member, on his heirs is also recognised by the Articles of Association.In these circumstances, the principles which will apply to the Company will be on a par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its directors or the Managing Director over respondent No. 1 cannot be held to be control exercised by the Government.
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Udaipal Singh Vs. State of Uttar Pradesh | Singh, accused, in giving wrong information to the police and the conduct of both Harnath Singh, accused, his wife in not helping the investigating authorities and also in setting up his alibi; and(5) Nature of the injuries found upon the person of the deceased.8. On appeal the High court held Udaipal Singh guilty of the murder of his wife for the following reasons;(1) He had very strong motive to get rid of his wife Smt. Savitri with whom his relations were very much strained for the four years preceding the murder.(2) He was present in village Mundgaon and must have been in his own house when the occurrence took place. He had, therefore, the opportunity to commit the murder.(3) The place of occurrence was his own room.(4) His conduct after the occurrence had taken place and the false explanation furnished by him. It was his duty to have given proper explanation as to how and in what circumstances Smt. Savitri met her death. However, he came forward with a false explanation and a false plea of alibi.(5) In the very first report which Harnath Singh made to the police an attempt was made to create an alibi for Udaipal Singh, That also clearly indicated that Udaipal Singh was the murderer and had to be saved.He was accordingly held guilty under Section 302, I.P.C. or in the alternative under Section 302, read with Section 34, I.P.C. The other two accused persons namely his parents were held not to have as strong a motive as the present appellant had in getting rid of the deceased. Though in the opinion of the High Court there were grave suspicions against the parents as well they were given benefit of doubt and acquitted of the charge of murder. Harnath Singh was held guilty of an offence under section 201, I.P.C. and sentenced to rigorous imprisonment for three years. Bari Beti was given benefit of doubt for this offence as well.9. Special leave application on behalf of both Harnath Singh and Udaipal Singh was filed in this Court on September 17, 1968. On November 6, 1968 an application was filed on behalf of the petitioners praying for permission to take an additional ground of appeal objecting to the admissibility of evidence of the letters said to have been written by the deceased to her father. On November 7, 1968 this Court declined special leave to Harnath Singh but granted the same to Udaipal Singh, appellant and also permitted him to file the additional grounds of appeal.10. In this Court, Shri Yogeshwar Prasad strongly contended that the appellants case was distinguished by the High Court from that of his father and mother on the ground only of his having stronger motive for getting rid of the deceased. Letters written by the deceased to her father on which alone the evidence of motive is founded were contended to be inadmissible in evidence because they do not fall under section 32(1) of the Indian Evidence Act. He further contended that the circumstantial evidence did not conclusively establish the appellants guilt beyond reasonable doubt because it did not exclude reasonable possibility of his innocence.11. Now, from the very nature of things apart from the inmates of the house there could be no eye-witness of the occurrence of this case and the prosecution had, therefore, necessarily to rely on circumstantial evidence only. In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation - if any - of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence. On behalf of the appellant this proposition was not disputed. According to him the letters written by the deceased to her father alone distinguish the appellants case from that of his parents and if those letters are excluded from consideration, being inadmissible in evidence then he would also be entitled to acquittal like his parents. In our opinion, even excluding the letters written by the deceased to her father there is ample evidence showing the strong motive on the part of the appellant to get rid of his wife. The letter written by the appellant to his mistress (Ex. Ka-8) quite clearly brings out the feeling of disgust which he cherished towards the deceased. The admissibility of this letter has not been questioned on behalf of the appellant before us, and in our opinion, rightly so. When confronted with this letter the appellant came out with the explanation that he had written it in order merely to tease his wife. This explanation did not appeal to the Court below, and in our opinion, quite rightly. The trial Court considered this explanation to be absurd and an afterthought. In the opinion of the High court this explanation had only to be stated to be rejected. This letter, according to that Court, indicated that the appellant wanted to get rid of his wife. The circumstances which induced the High Court to uphold the appellants conviction have already been reproduced earlier. These circumstances were, in our opinion, rightly held by the High Court to be inconsistent with the innocence of the appellant and incapable of any other hypothesis than that of the appellants guilt. Whether or not his parents were also guilty along with him need not be considered because they have been acquitted of the charge of murder and there is not appeal against their acquittal. The appellants culpability on the facts and circumstances of this case is unaffected by the acquittal of his parents.12. | 0[ds]In our opinion, even excluding the letters written by the deceased to her father there is ample evidence showing the strong motive on the part of the appellant to get rid of his wife. The letter written by the appellant to his mistress (Ex.quite clearly brings out the feeling of disgust which he cherished towards the deceased. The admissibility of this letter has not been questioned on behalf of the appellant before us, and in our opinion, rightly so. When confronted with this letter the appellant came out with the explanation that he had written it in order merely to tease his wife. This explanation did not appeal to the Court below, and in our opinion, quite rightly. The trial Court considered this explanation to be absurd and an afterthought. In the opinion of the High court this explanation had only to be stated to be rejected. This letter, according to that Court, indicated that the appellant wanted to get rid of his wife. The circumstances which induced the High Court to uphold the appellants conviction have already been reproduced earlier. These circumstances were, in our opinion, rightly held by the High Court to be inconsistent with the innocence of the appellant and incapable of any other hypothesis than that of the appellants guilt. Whether or not his parents were also guilty along with him need not be considered because they have been acquitted of the charge of murder and there is not appeal against their acquittal. The appellants culpability on the facts and circumstances of this case is unaffected by the acquittal of his parents. | 0 | 2,495 | 292 | ### Instruction:
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Singh, accused, in giving wrong information to the police and the conduct of both Harnath Singh, accused, his wife in not helping the investigating authorities and also in setting up his alibi; and(5) Nature of the injuries found upon the person of the deceased.8. On appeal the High court held Udaipal Singh guilty of the murder of his wife for the following reasons;(1) He had very strong motive to get rid of his wife Smt. Savitri with whom his relations were very much strained for the four years preceding the murder.(2) He was present in village Mundgaon and must have been in his own house when the occurrence took place. He had, therefore, the opportunity to commit the murder.(3) The place of occurrence was his own room.(4) His conduct after the occurrence had taken place and the false explanation furnished by him. It was his duty to have given proper explanation as to how and in what circumstances Smt. Savitri met her death. However, he came forward with a false explanation and a false plea of alibi.(5) In the very first report which Harnath Singh made to the police an attempt was made to create an alibi for Udaipal Singh, That also clearly indicated that Udaipal Singh was the murderer and had to be saved.He was accordingly held guilty under Section 302, I.P.C. or in the alternative under Section 302, read with Section 34, I.P.C. The other two accused persons namely his parents were held not to have as strong a motive as the present appellant had in getting rid of the deceased. Though in the opinion of the High Court there were grave suspicions against the parents as well they were given benefit of doubt and acquitted of the charge of murder. Harnath Singh was held guilty of an offence under section 201, I.P.C. and sentenced to rigorous imprisonment for three years. Bari Beti was given benefit of doubt for this offence as well.9. Special leave application on behalf of both Harnath Singh and Udaipal Singh was filed in this Court on September 17, 1968. On November 6, 1968 an application was filed on behalf of the petitioners praying for permission to take an additional ground of appeal objecting to the admissibility of evidence of the letters said to have been written by the deceased to her father. On November 7, 1968 this Court declined special leave to Harnath Singh but granted the same to Udaipal Singh, appellant and also permitted him to file the additional grounds of appeal.10. In this Court, Shri Yogeshwar Prasad strongly contended that the appellants case was distinguished by the High Court from that of his father and mother on the ground only of his having stronger motive for getting rid of the deceased. Letters written by the deceased to her father on which alone the evidence of motive is founded were contended to be inadmissible in evidence because they do not fall under section 32(1) of the Indian Evidence Act. He further contended that the circumstantial evidence did not conclusively establish the appellants guilt beyond reasonable doubt because it did not exclude reasonable possibility of his innocence.11. Now, from the very nature of things apart from the inmates of the house there could be no eye-witness of the occurrence of this case and the prosecution had, therefore, necessarily to rely on circumstantial evidence only. In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation - if any - of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence. On behalf of the appellant this proposition was not disputed. According to him the letters written by the deceased to her father alone distinguish the appellants case from that of his parents and if those letters are excluded from consideration, being inadmissible in evidence then he would also be entitled to acquittal like his parents. In our opinion, even excluding the letters written by the deceased to her father there is ample evidence showing the strong motive on the part of the appellant to get rid of his wife. The letter written by the appellant to his mistress (Ex. Ka-8) quite clearly brings out the feeling of disgust which he cherished towards the deceased. The admissibility of this letter has not been questioned on behalf of the appellant before us, and in our opinion, rightly so. When confronted with this letter the appellant came out with the explanation that he had written it in order merely to tease his wife. This explanation did not appeal to the Court below, and in our opinion, quite rightly. The trial Court considered this explanation to be absurd and an afterthought. In the opinion of the High court this explanation had only to be stated to be rejected. This letter, according to that Court, indicated that the appellant wanted to get rid of his wife. The circumstances which induced the High Court to uphold the appellants conviction have already been reproduced earlier. These circumstances were, in our opinion, rightly held by the High Court to be inconsistent with the innocence of the appellant and incapable of any other hypothesis than that of the appellants guilt. Whether or not his parents were also guilty along with him need not be considered because they have been acquitted of the charge of murder and there is not appeal against their acquittal. The appellants culpability on the facts and circumstances of this case is unaffected by the acquittal of his parents.12.
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0
### Explanation:
In our opinion, even excluding the letters written by the deceased to her father there is ample evidence showing the strong motive on the part of the appellant to get rid of his wife. The letter written by the appellant to his mistress (Ex.quite clearly brings out the feeling of disgust which he cherished towards the deceased. The admissibility of this letter has not been questioned on behalf of the appellant before us, and in our opinion, rightly so. When confronted with this letter the appellant came out with the explanation that he had written it in order merely to tease his wife. This explanation did not appeal to the Court below, and in our opinion, quite rightly. The trial Court considered this explanation to be absurd and an afterthought. In the opinion of the High court this explanation had only to be stated to be rejected. This letter, according to that Court, indicated that the appellant wanted to get rid of his wife. The circumstances which induced the High Court to uphold the appellants conviction have already been reproduced earlier. These circumstances were, in our opinion, rightly held by the High Court to be inconsistent with the innocence of the appellant and incapable of any other hypothesis than that of the appellants guilt. Whether or not his parents were also guilty along with him need not be considered because they have been acquitted of the charge of murder and there is not appeal against their acquittal. The appellants culpability on the facts and circumstances of this case is unaffected by the acquittal of his parents.
|
M/s. Exen Industries Vs. The Chief Controller of Imports & Exports & Others | could be issued to them. This was repeated by the Under Secretary to the Government of India in his letter, dated December 3, 1965 wherein it was stated that as the machinery and equipment of the original firm had been equally divided, it had been decided that both the firms i.e., the old and the new ones, should be registered with D.G.T.D., and the raw material allocations previously made to the undivided firm should be equally divided between the two firms.3. It is against this decision that the appellants moved an application to the High Court for issue of a writ on the ground that the refusal had been against the policy, procedure and conditions governing the grant and issue of actual users licences as published in the Gazette of Indian as a public notice and embodied in an Official publication called the Import Trade Control Policy popularly known as the Red Book and the Hand Book. In these two publications detailed provisions have been made for the division of the licences in the event of a change in the constitution of a firm (sic) pending applications, pending licences, future licences and future licences entitlements. According to the appellant the two books also lay down conditions for grant of licence to actual users and make separate provisions for division of licences in the case of pending applications for the grant of licences and pending licences in the case of change of constitution of the firm. The appellants claim that these publications however do not make any provisions for division of the licence entitlements for the future inasmuch as actual users are given licences for the licensing period only on the basis laid down by the Red Book and the Hand Book. Paragraph 73 of the Hand Book to which our attention was drawn, lays down the basis of licensing of actual users. They provide for taking into account various matters which are all set out in the petition. Paragraph 88 of the Hand Book provides for changes in the name, constitution or ownership of the actual users business after the issue of the actual users license but before and after the importation of the goods. According to the petition this paragraph does not deal with the division of future licences to actual users inasmuch as the same has to depend on the basis laid down and contained in Paragraph 73 of the Hand Book. The appellants claimed in their petition that the licensing authorities are bound to act judicially and reasonably while granting or refusing licences in exercise of the discretion vested in them by law and they could refuse the licence under the provisions of Clause 6 of the Imports (Control) Order, 1955, and under Paragraph 73 of the Hand Book, but the reason given for refusal to give the balance of import licence to them was not a valid one and the refusal was unfair and arbitrary based on extraneous considerations without proper application of the mind on the part of the respondents. It was in the above circumstances that the appellants approached the High Court for the issue of a writ and the said application was rejected in limine.4. It was submitted before us that clearly the facts laid down in the petition called for some explanation by the respondents to justify their refusal as the ground which was put forward as the basis of the refusal cannot bear scrutiny. It appears to us that the grievance of the appellants is not unjustified. The petition supported as it was by numerous annexures which contain copies of representations made by the appellants to the various authorities and their replies, obviously established a prima facie case for investigation and the High Court should have, to say the least, called upon the respondents to show cause why a rule should not be issued.5. Learned appearing for the respondents did not suggest that a prima facie case for enquiry had not been made out. The grate of actual users licences to manufacturers is of vital importance to them if they are to carry on their business and courts ought not to uphold any refusal of such licences if they appear to be arbitrary or based on extraneous considerations. It may be that the respondents could have satisfied the High Court that there was sufficient cause for refusal apart from the grounds put forward by them in the letters of November 18, 1965 and December 3, 1965. However the High Court though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution. We may, in this connection, refer to a recent judgment of this Court in Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council, (C.As. Nos. 2130 and 2131 of 1969, decided on February 27, 1970 : (1969) 1 SCC 582 : (1970) 3 SCR 854 : AIR 1971 SC 1021 .) where it was stated that :".............. a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits............... The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried." | 1[ds]It appears to us that the grievance of the appellants is not unjustified. The petition supported as it was by numerous annexures which contain copies of representations made by the appellants to the various authorities and their replies, obviously established a prima facie case for investigation and the High Court should have, to say the least, called upon the respondents to show cause why a rule should not bemay be that the respondents could have satisfied the High Court that there was sufficient cause for refusal apart from the grounds put forward by them in the letters of November 18, 1965 and December 3, 1965. However the High Court though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution. | 1 | 1,824 | 222 | ### 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:
could be issued to them. This was repeated by the Under Secretary to the Government of India in his letter, dated December 3, 1965 wherein it was stated that as the machinery and equipment of the original firm had been equally divided, it had been decided that both the firms i.e., the old and the new ones, should be registered with D.G.T.D., and the raw material allocations previously made to the undivided firm should be equally divided between the two firms.3. It is against this decision that the appellants moved an application to the High Court for issue of a writ on the ground that the refusal had been against the policy, procedure and conditions governing the grant and issue of actual users licences as published in the Gazette of Indian as a public notice and embodied in an Official publication called the Import Trade Control Policy popularly known as the Red Book and the Hand Book. In these two publications detailed provisions have been made for the division of the licences in the event of a change in the constitution of a firm (sic) pending applications, pending licences, future licences and future licences entitlements. According to the appellant the two books also lay down conditions for grant of licence to actual users and make separate provisions for division of licences in the case of pending applications for the grant of licences and pending licences in the case of change of constitution of the firm. The appellants claim that these publications however do not make any provisions for division of the licence entitlements for the future inasmuch as actual users are given licences for the licensing period only on the basis laid down by the Red Book and the Hand Book. Paragraph 73 of the Hand Book to which our attention was drawn, lays down the basis of licensing of actual users. They provide for taking into account various matters which are all set out in the petition. Paragraph 88 of the Hand Book provides for changes in the name, constitution or ownership of the actual users business after the issue of the actual users license but before and after the importation of the goods. According to the petition this paragraph does not deal with the division of future licences to actual users inasmuch as the same has to depend on the basis laid down and contained in Paragraph 73 of the Hand Book. The appellants claimed in their petition that the licensing authorities are bound to act judicially and reasonably while granting or refusing licences in exercise of the discretion vested in them by law and they could refuse the licence under the provisions of Clause 6 of the Imports (Control) Order, 1955, and under Paragraph 73 of the Hand Book, but the reason given for refusal to give the balance of import licence to them was not a valid one and the refusal was unfair and arbitrary based on extraneous considerations without proper application of the mind on the part of the respondents. It was in the above circumstances that the appellants approached the High Court for the issue of a writ and the said application was rejected in limine.4. It was submitted before us that clearly the facts laid down in the petition called for some explanation by the respondents to justify their refusal as the ground which was put forward as the basis of the refusal cannot bear scrutiny. It appears to us that the grievance of the appellants is not unjustified. The petition supported as it was by numerous annexures which contain copies of representations made by the appellants to the various authorities and their replies, obviously established a prima facie case for investigation and the High Court should have, to say the least, called upon the respondents to show cause why a rule should not be issued.5. Learned appearing for the respondents did not suggest that a prima facie case for enquiry had not been made out. The grate of actual users licences to manufacturers is of vital importance to them if they are to carry on their business and courts ought not to uphold any refusal of such licences if they appear to be arbitrary or based on extraneous considerations. It may be that the respondents could have satisfied the High Court that there was sufficient cause for refusal apart from the grounds put forward by them in the letters of November 18, 1965 and December 3, 1965. However the High Court though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution. We may, in this connection, refer to a recent judgment of this Court in Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council, (C.As. Nos. 2130 and 2131 of 1969, decided on February 27, 1970 : (1969) 1 SCC 582 : (1970) 3 SCR 854 : AIR 1971 SC 1021 .) where it was stated that :".............. a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits............... The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried."
### Response:
1
### Explanation:
It appears to us that the grievance of the appellants is not unjustified. The petition supported as it was by numerous annexures which contain copies of representations made by the appellants to the various authorities and their replies, obviously established a prima facie case for investigation and the High Court should have, to say the least, called upon the respondents to show cause why a rule should not bemay be that the respondents could have satisfied the High Court that there was sufficient cause for refusal apart from the grounds put forward by them in the letters of November 18, 1965 and December 3, 1965. However the High Court though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution.
|
Shri Bhagwan And Anr Vs. Ram Chand And Anr | before the date of commencement of this Act, shall, in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains in force, except on any of the grounds mentioned in S. 3. This section emphatically brings out the main object of the Act which is to save the tenants from eviction. That is why it prescribes a bar against the execution of the decrees which may have been passed for the eviction of tenants before the Act came into force, unless the landlords are able to show one or the other ground mentioned in S. 3.15. A similar provision is made by S. 15 in regard to pending suits. It lays down that in all suits for eviction of tenants from any accommodation pending on the date of commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 3. This provision also emphasises the importance attached by the Act to the protection of the tenants from eviction. The right conferred on the tenants not to be evicted, except on the specified grounds enumerated by cls. (a) to (g) of S. 3 (1), is a statutory right of great significance, and it is this statutory right of which the tenants would be deprived when the landlord obtains the sanction of the District Magistrate. That is why we think the Act must be taken to require that in exercising their respective powers under S. 3 (2) and Section 3 (3), the appropriate authorities have to consider the matter in a quasi-judicial manner, and are expected to follow the principles of natural justice before reaching their conclusions.16. We have already indicated that the Allahabad High Court had consistently taken the contrary view and held that the functions discharged by the appropriate authorities under-S. 3 (2) and S. 3 (3) are administrative and an obligation to follow the principles of natural justice cannot be imposed on the said authorities, vide Narottam Saran v. Govt. of the State of U.P., AIR 1954 All 232 . Indeed, after the learned single Judge had held in the present proceedings that the view taken by the earlier decisions of the Allahabad High Court was erroneous, a Division Bench of the said High Court considered the same question once again and re-affirmed its earlier view, vide Murlidhar v. State of U. P., AIR 1964 All 148 . We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken by the High Court of Allahabad on this point. With respect, we are unable to agree with the decision in Murlidhars case, AIR 1964 All 148 (supra).17. In this connection, we may refer to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (Al R 1964 SC 436) (supra) on which the learned single Judge partly relied in support of his conclusion. In that case, this Court was called upon to consider the question whether the revisional jurisdiction conferred on the State Government under S. 19 of the Watar Act was purely administrative, and it came to the conclusion that in exercising the said revisional jurisdiction the State Government is not acting purely as an administrative authority; its decision is judicial or quasijudicial, and so, it is essential that the State Government should follow the principles of natural justice before reaching its conclusion under that section. The scheme of the relevant provisions of the Watan Act cannot, however, be said to be exactly similar to the scheme of the Act with which we are concerned; whereas S. 3 of the Act with which we are concerned in the present appeal deals with the statutory rights conferred on the tenants, the relevant sections of the Watan Act dealt with the right of possession of the Watan property itself. That being so, it cannot be said that the decision in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra) can be deemed to have overruled by necessary implication the view taken by the Allahabad High Court in regard to the nature of the power conferred on the appropriate authorities by Ss. 3 and 7-F of the Act.18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be pre-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra). It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.19 | 0[ds]14. We have already referred to the general policy of the Act. In that connection, we may mention two other sections of the Act. Section 14 provides that no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act, shall, in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains in force, except on any of the grounds mentioned in S. 3. This section emphatically brings out the main object of the Act which is to save the tenants from eviction. That is why it prescribes a bar against the execution of the decrees which may have been passed for the eviction of tenants before the Act came into force, unless the landlords are able to show one or the other ground mentioned in S. 3.15. A similar provision is made by S. 15 in regard to pending suits. It lays down that in all suits for eviction of tenants from any accommodation pending on the date of commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 3. This provision also emphasises the importance attached by the Act to the protection of the tenants from eviction. The right conferred on the tenants not to be evicted, except on the specified grounds enumerated by cls. (a) to (g) of S. 3 (1), is a statutory right of great significance, and it is this statutory right of which the tenants would be deprived when the landlord obtains the sanction of the District Magistrate. That is why we think the Act must be taken to require that in exercising their respective powers under S. 3 (2) and Section 3 (3), the appropriate authorities have to consider the matter in a quasi-judicial manner, and are expected to follow the principles of natural justice before reaching their conclusions.16. We have already indicated that the Allahabad High Court had consistently taken the contrary view and held that the functions discharged by the appropriate authorities under-S. 3 (2) and S. 3 (3) are administrative and an obligation to follow the principles of natural justice cannot be imposed on the said authorities, vide Narottam Saran v. Govt. of the State of U.P., AIR 1954 All 232 . Indeed, after the learned single Judge had held in the present proceedings that the view taken by the earlier decisions of the Allahabad High Court was erroneous, a Division Bench of the said High Court considered the same question once again and re-affirmed its earlier view, vide Murlidhar v. State of U. P., AIR 1964 All 148 . We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken by the High Court of Allahabad on this point. With respect, we are unable to agree with the decision in Murlidhars case, AIR 1964 All 148 (supra).17. In this connection, we may refer to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (Al R 1964 SC 436) (supra) on which the learned single Judge partly relied in support of his conclusion. In that case, this Court was called upon to consider the question whether the revisional jurisdiction conferred on the State Government under S. 19 of the Watar Act was purely administrative, and it came to the conclusion that in exercising the said revisional jurisdiction the State Government is not acting purely as an administrative authority; its decision is judicial or quasijudicial, and so, it is essential that the State Government should follow the principles of natural justice before reaching its conclusion under that section. The scheme of the relevant provisions of the Watan Act cannot, however, be said to be exactly similar to the scheme of the Act with which we are concerned; whereas S. 3 of the Act with which we are concerned in the present appeal deals with the statutory rights conferred on the tenants, the relevant sections of the Watan Act dealt with the right of possession of the Watan property itself. That being so, it cannot be said that the decision in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra) can be deemed to have overruled by necessary implication the view taken by the Allahabad High Court in regard to the nature of the power conferred on the appropriate authorities by Ss. 3 and 7-F of the Act.18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be pre-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra). It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself. | 0 | 5,199 | 1,146 | ### 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:
before the date of commencement of this Act, shall, in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains in force, except on any of the grounds mentioned in S. 3. This section emphatically brings out the main object of the Act which is to save the tenants from eviction. That is why it prescribes a bar against the execution of the decrees which may have been passed for the eviction of tenants before the Act came into force, unless the landlords are able to show one or the other ground mentioned in S. 3.15. A similar provision is made by S. 15 in regard to pending suits. It lays down that in all suits for eviction of tenants from any accommodation pending on the date of commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 3. This provision also emphasises the importance attached by the Act to the protection of the tenants from eviction. The right conferred on the tenants not to be evicted, except on the specified grounds enumerated by cls. (a) to (g) of S. 3 (1), is a statutory right of great significance, and it is this statutory right of which the tenants would be deprived when the landlord obtains the sanction of the District Magistrate. That is why we think the Act must be taken to require that in exercising their respective powers under S. 3 (2) and Section 3 (3), the appropriate authorities have to consider the matter in a quasi-judicial manner, and are expected to follow the principles of natural justice before reaching their conclusions.16. We have already indicated that the Allahabad High Court had consistently taken the contrary view and held that the functions discharged by the appropriate authorities under-S. 3 (2) and S. 3 (3) are administrative and an obligation to follow the principles of natural justice cannot be imposed on the said authorities, vide Narottam Saran v. Govt. of the State of U.P., AIR 1954 All 232 . Indeed, after the learned single Judge had held in the present proceedings that the view taken by the earlier decisions of the Allahabad High Court was erroneous, a Division Bench of the said High Court considered the same question once again and re-affirmed its earlier view, vide Murlidhar v. State of U. P., AIR 1964 All 148 . We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken by the High Court of Allahabad on this point. With respect, we are unable to agree with the decision in Murlidhars case, AIR 1964 All 148 (supra).17. In this connection, we may refer to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (Al R 1964 SC 436) (supra) on which the learned single Judge partly relied in support of his conclusion. In that case, this Court was called upon to consider the question whether the revisional jurisdiction conferred on the State Government under S. 19 of the Watar Act was purely administrative, and it came to the conclusion that in exercising the said revisional jurisdiction the State Government is not acting purely as an administrative authority; its decision is judicial or quasijudicial, and so, it is essential that the State Government should follow the principles of natural justice before reaching its conclusion under that section. The scheme of the relevant provisions of the Watan Act cannot, however, be said to be exactly similar to the scheme of the Act with which we are concerned; whereas S. 3 of the Act with which we are concerned in the present appeal deals with the statutory rights conferred on the tenants, the relevant sections of the Watan Act dealt with the right of possession of the Watan property itself. That being so, it cannot be said that the decision in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra) can be deemed to have overruled by necessary implication the view taken by the Allahabad High Court in regard to the nature of the power conferred on the appropriate authorities by Ss. 3 and 7-F of the Act.18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be pre-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra). It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.19
### Response:
0
### Explanation:
so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains in force, except on any of the grounds mentioned in S. 3. This section emphatically brings out the main object of the Act which is to save the tenants from eviction. That is why it prescribes a bar against the execution of the decrees which may have been passed for the eviction of tenants before the Act came into force, unless the landlords are able to show one or the other ground mentioned in S. 3.15. A similar provision is made by S. 15 in regard to pending suits. It lays down that in all suits for eviction of tenants from any accommodation pending on the date of commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 3. This provision also emphasises the importance attached by the Act to the protection of the tenants from eviction. The right conferred on the tenants not to be evicted, except on the specified grounds enumerated by cls. (a) to (g) of S. 3 (1), is a statutory right of great significance, and it is this statutory right of which the tenants would be deprived when the landlord obtains the sanction of the District Magistrate. That is why we think the Act must be taken to require that in exercising their respective powers under S. 3 (2) and Section 3 (3), the appropriate authorities have to consider the matter in a quasi-judicial manner, and are expected to follow the principles of natural justice before reaching their conclusions.16. We have already indicated that the Allahabad High Court had consistently taken the contrary view and held that the functions discharged by the appropriate authorities under-S. 3 (2) and S. 3 (3) are administrative and an obligation to follow the principles of natural justice cannot be imposed on the said authorities, vide Narottam Saran v. Govt. of the State of U.P., AIR 1954 All 232 . Indeed, after the learned single Judge had held in the present proceedings that the view taken by the earlier decisions of the Allahabad High Court was erroneous, a Division Bench of the said High Court considered the same question once again and re-affirmed its earlier view, vide Murlidhar v. State of U. P., AIR 1964 All 148 . We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken by the High Court of Allahabad on this point. With respect, we are unable to agree with the decision in Murlidhars case, AIR 1964 All 148 (supra).17. In this connection, we may refer to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (Al R 1964 SC 436) (supra) on which the learned single Judge partly relied in support of his conclusion. In that case, this Court was called upon to consider the question whether the revisional jurisdiction conferred on the State Government under S. 19 of the Watar Act was purely administrative, and it came to the conclusion that in exercising the said revisional jurisdiction the State Government is not acting purely as an administrative authority; its decision is judicial or quasijudicial, and so, it is essential that the State Government should follow the principles of natural justice before reaching its conclusion under that section. The scheme of the relevant provisions of the Watan Act cannot, however, be said to be exactly similar to the scheme of the Act with which we are concerned; whereas S. 3 of the Act with which we are concerned in the present appeal deals with the statutory rights conferred on the tenants, the relevant sections of the Watan Act dealt with the right of possession of the Watan property itself. That being so, it cannot be said that the decision in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra) can be deemed to have overruled by necessary implication the view taken by the Allahabad High Court in regard to the nature of the power conferred on the appropriate authorities by Ss. 3 and 7-F of the Act.18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be pre-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkars case (1964) 1 SCR 200 : (AIR 1964 SC 436 ) (supra). It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.
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Chandra Kanti Das Vs. State of Uttar Pradesh and Others | PATHAK, J.1. This appeal by special leave is directed against the judgment of the Allahabad High Court allowing a writ petition filed by the fifth respondent against an order of the District Inspector of Schools, Mathura.2. The appellant Chandra Kanti Das was appointed a daftri in the Shri Krishna Chaitanya Intermediate College, Nand Gaon in the district of Mathura in June 1971. He was confirmed in the post on June 24, 1972. It appears that the he took leave and proceeded home, apparently because his father was seriously ill. It is said that the father subsequently died and the appellant, who himself fell ill, could not rejoin duty within time. When he returned to his post, he was not permitted to join and was served with an order terminating his services. Thereafter, the fifth respondent, Krishna Shakhya Kachhi was appointed in his place and, it seems, later confirmed. Meanwhile, the appellant, it is claimed, appealed to the Managing Committee against the order terminating his services. There is some dispute whether he actually did so. A few days later, he preferred an appeal to the District Inspector of Schools complaining of the order terminating his services. The District Inspector issued a notice dated August 19, 1976 of the appeal to the Principal and appointed August 25, 1976 at 10.00 o clock of the morning for hearing the appeal. The case of the Principal is that he did not receive the notice but what he did receive in fact was a subsequent letter dated August 23, 1976. Accordingly to the Principal, he received that letter on August 25. 1976 but late in the afternoon so that he was unable to appear before the District Inspector for the hearing of the appeal. On September 13, 1976, the District Inspector made an order in which after holding that the termination of the appellants services was contrary to law he directing his reinstatement with immediate effect with a further direction that he should be treated as on leave without pay from April 25, 1975. He also directed that the person appointed in his place be dismissed. It may be noted that besides preferring an appeal against the order terminating his services, the appellant had also instituted a civil suit in the Court of the learned Munsif, but the suit was dismissed. The appellant declares that he had applied for withdrawing the suit and it it was disposed of a withdrawn The fifth respondent urges that it was not withdrawn but was dismissed. This controversy need not detain us.3. On coming to know of the order of the District Inspector on the appeal filed by the appellant, the fifth respondent filed a writ petition before the Allahabad High Court. On January 1, 1979, the High Court allowed the writ petition on the finding that appeal had been disposed of by the District Inspector without a proper opportunity to the principal of being heard in support of the order terminating the appellants services. The High Court set aside the order of the District Inspector dated September 13, 1976. It also quashed a consequential order passed by the principal on September 25, 1976. The High Court also directed the District Inspector to reconsider the appeal after giving a reasonable opportunity to the Committee of Management of participating in its hearing. Various auxiliary directions were also given to the District Inspector in regard to the scope of the appeal. The writ petition was allowed with costs to the fifth respondent against the appellant.4. The principal, and the only serious, contention on behalf of the appellant before us is that the notice issued by the district Inspector of the appeal filed by the appellant was served in time on the principal and there was adequate opportunity to the Principal to appear during the hearing of the appeal, and therefore the High Court should not have interfered with the order of the District Inspector. We have examined the record before us an we are unable to hold that the finding of the High Court is perverse and against the evidence on the record. There was material before the high Court on the basis of which it would have come to the conclusion reached by it and we see no reason why we should interfere. The order made by the High Court while disposing of the writ petition is an appropriate order in the circumstances of the Case, and there is good reason why it should be maintained. The only modification we propose is in regard to the order directing the appellant to pay costs to the fifth respondent. In our judgment, that does not accord with reason and needs to be set aside.5. Mr. M. L. Verma, counsel of the fifth respondent, has vehemently contended that the termination of the appellants services had been approved by an earlier District Inspector of Schools, and the approval having become final it was not open to the successor District Inspector to consider the matter afresh. This contention is not open of Mr. Verma because in effect it amounts to a submission that the High Court was wrong in referring the dispute back to the District Inspector for fresh consideration of the appellants appeal on its merits. If the case of the fifth respondent is that the District Inspector could not reopen the order of his predecessor approving the termination of the appellants services, the fifth respondent should have come to this Court against the order of the High Court sending the case back to the district Inspector. As this was not done, we cannot permit Mr. Verma to raise the point. | 0[ds]We have examined the record before us an we are unable to hold that the finding of the High Court is perverse and against the evidence on the record. There was material before the high Court on the basis of which it would have come to the conclusion reached by it and we see no reason why we should interfere. The order made by the High Court while disposing of the writ petition is an appropriate order in the circumstances of the Case, and there is good reason why it should be maintained. The only modification we propose is in regard to the order directing the appellant to pay costs to the fifth respondent. In our judgment, that does not accord with reason and needs to be setthe case of the fifth respondent is that the District Inspector could not reopen the order of his predecessor approving the termination of the appellants services, the fifth respondent should have come to this Court against the order of the High Court sending the case back to the district Inspector. As this was not done, we cannot permit Mr. Verma to raise the point. | 0 | 1,015 | 206 | ### 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:
PATHAK, J.1. This appeal by special leave is directed against the judgment of the Allahabad High Court allowing a writ petition filed by the fifth respondent against an order of the District Inspector of Schools, Mathura.2. The appellant Chandra Kanti Das was appointed a daftri in the Shri Krishna Chaitanya Intermediate College, Nand Gaon in the district of Mathura in June 1971. He was confirmed in the post on June 24, 1972. It appears that the he took leave and proceeded home, apparently because his father was seriously ill. It is said that the father subsequently died and the appellant, who himself fell ill, could not rejoin duty within time. When he returned to his post, he was not permitted to join and was served with an order terminating his services. Thereafter, the fifth respondent, Krishna Shakhya Kachhi was appointed in his place and, it seems, later confirmed. Meanwhile, the appellant, it is claimed, appealed to the Managing Committee against the order terminating his services. There is some dispute whether he actually did so. A few days later, he preferred an appeal to the District Inspector of Schools complaining of the order terminating his services. The District Inspector issued a notice dated August 19, 1976 of the appeal to the Principal and appointed August 25, 1976 at 10.00 o clock of the morning for hearing the appeal. The case of the Principal is that he did not receive the notice but what he did receive in fact was a subsequent letter dated August 23, 1976. Accordingly to the Principal, he received that letter on August 25. 1976 but late in the afternoon so that he was unable to appear before the District Inspector for the hearing of the appeal. On September 13, 1976, the District Inspector made an order in which after holding that the termination of the appellants services was contrary to law he directing his reinstatement with immediate effect with a further direction that he should be treated as on leave without pay from April 25, 1975. He also directed that the person appointed in his place be dismissed. It may be noted that besides preferring an appeal against the order terminating his services, the appellant had also instituted a civil suit in the Court of the learned Munsif, but the suit was dismissed. The appellant declares that he had applied for withdrawing the suit and it it was disposed of a withdrawn The fifth respondent urges that it was not withdrawn but was dismissed. This controversy need not detain us.3. On coming to know of the order of the District Inspector on the appeal filed by the appellant, the fifth respondent filed a writ petition before the Allahabad High Court. On January 1, 1979, the High Court allowed the writ petition on the finding that appeal had been disposed of by the District Inspector without a proper opportunity to the principal of being heard in support of the order terminating the appellants services. The High Court set aside the order of the District Inspector dated September 13, 1976. It also quashed a consequential order passed by the principal on September 25, 1976. The High Court also directed the District Inspector to reconsider the appeal after giving a reasonable opportunity to the Committee of Management of participating in its hearing. Various auxiliary directions were also given to the District Inspector in regard to the scope of the appeal. The writ petition was allowed with costs to the fifth respondent against the appellant.4. The principal, and the only serious, contention on behalf of the appellant before us is that the notice issued by the district Inspector of the appeal filed by the appellant was served in time on the principal and there was adequate opportunity to the Principal to appear during the hearing of the appeal, and therefore the High Court should not have interfered with the order of the District Inspector. We have examined the record before us an we are unable to hold that the finding of the High Court is perverse and against the evidence on the record. There was material before the high Court on the basis of which it would have come to the conclusion reached by it and we see no reason why we should interfere. The order made by the High Court while disposing of the writ petition is an appropriate order in the circumstances of the Case, and there is good reason why it should be maintained. The only modification we propose is in regard to the order directing the appellant to pay costs to the fifth respondent. In our judgment, that does not accord with reason and needs to be set aside.5. Mr. M. L. Verma, counsel of the fifth respondent, has vehemently contended that the termination of the appellants services had been approved by an earlier District Inspector of Schools, and the approval having become final it was not open to the successor District Inspector to consider the matter afresh. This contention is not open of Mr. Verma because in effect it amounts to a submission that the High Court was wrong in referring the dispute back to the District Inspector for fresh consideration of the appellants appeal on its merits. If the case of the fifth respondent is that the District Inspector could not reopen the order of his predecessor approving the termination of the appellants services, the fifth respondent should have come to this Court against the order of the High Court sending the case back to the district Inspector. As this was not done, we cannot permit Mr. Verma to raise the point.
### Response:
0
### Explanation:
We have examined the record before us an we are unable to hold that the finding of the High Court is perverse and against the evidence on the record. There was material before the high Court on the basis of which it would have come to the conclusion reached by it and we see no reason why we should interfere. The order made by the High Court while disposing of the writ petition is an appropriate order in the circumstances of the Case, and there is good reason why it should be maintained. The only modification we propose is in regard to the order directing the appellant to pay costs to the fifth respondent. In our judgment, that does not accord with reason and needs to be setthe case of the fifth respondent is that the District Inspector could not reopen the order of his predecessor approving the termination of the appellants services, the fifth respondent should have come to this Court against the order of the High Court sending the case back to the district Inspector. As this was not done, we cannot permit Mr. Verma to raise the point.
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Union of India & Anr Vs. Subhash Chander Sehgal & Ors | However, despite the above and relying upon the decisions of this Court in the case of Pune Municipal Corporation and another versus Harakchand Misirimal Solanki and others reported in (2014) 3 SCC 183 and Sree Balaji Nagar Residential Association vs. State of Tamil Nadu, (2015) 3 SCC 353, the High Court has declared that the acquisition proceedings in respect of the subject land had lapsed in terms of Section 24(2) of the Act, 2013. 3.1 In a subsequent decision, a Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 has specifically overruled the decisions of this Court in the case of Pune Municipal Corporation (supra) and Sree Balaji Nagar Residential Association (supra). In paragraph 366 it is observed and held as under: 366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 3.2 In such a situation no relief of lapse of acquisition proceedings can be countenanced in this case in view of the law laid down by this Court in the case of Indore Development Authority (supra). Once it is held that there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, the land which has stood vested with the appellant continues to do. Also, there is no question of payment of any compensation to the writ petitioners in respect of the suit land as per the Act, 2013. However, the original writ petitioners shall be entitled to compensation under the Land Acquisition Act, 1894 as per Award No.102/1986-87 dated 19.09.1986 as referred to by the High Court in para 3 of the impugned judgment and order or in the event any enhancement is sought by the original writ petitioners in accordance with law. | 0[ds]3.1 In a subsequent decision, a Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 has specifically overruled the decisions of this Court in the case of Pune Municipal Corporation (supra) and Sree Balaji Nagar Residential Association (supra). In paragraph 366 it is observed and held as under:366. In view of the aforesaid discussion, we answer the questions as under:366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.3.2 In such a situation no relief of lapse of acquisition proceedings can be countenanced in this case in view of the law laid down by this Court in the case of Indore Development Authority (supra). Once it is held that there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, the land which has stood vested with the appellant continues to do. Also, there is no question of payment of any compensation to the writ petitioners in respect of the suit land as per the Act, 2013.However, the original writ petitioners shall be entitled to compensation under the Land Acquisition Act, 1894 as per Award No.102/1986-87 dated 19.09.1986 as referred to by the High Court in para 3 of the impugned judgment and order or in the event any enhancement is sought by the original writ petitioners in accordance with law. | 0 | 1,363 | 1,053 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
However, despite the above and relying upon the decisions of this Court in the case of Pune Municipal Corporation and another versus Harakchand Misirimal Solanki and others reported in (2014) 3 SCC 183 and Sree Balaji Nagar Residential Association vs. State of Tamil Nadu, (2015) 3 SCC 353, the High Court has declared that the acquisition proceedings in respect of the subject land had lapsed in terms of Section 24(2) of the Act, 2013. 3.1 In a subsequent decision, a Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 has specifically overruled the decisions of this Court in the case of Pune Municipal Corporation (supra) and Sree Balaji Nagar Residential Association (supra). In paragraph 366 it is observed and held as under: 366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 3.2 In such a situation no relief of lapse of acquisition proceedings can be countenanced in this case in view of the law laid down by this Court in the case of Indore Development Authority (supra). Once it is held that there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, the land which has stood vested with the appellant continues to do. Also, there is no question of payment of any compensation to the writ petitioners in respect of the suit land as per the Act, 2013. However, the original writ petitioners shall be entitled to compensation under the Land Acquisition Act, 1894 as per Award No.102/1986-87 dated 19.09.1986 as referred to by the High Court in para 3 of the impugned judgment and order or in the event any enhancement is sought by the original writ petitioners in accordance with law.
### Response:
0
### Explanation:
3.1 In a subsequent decision, a Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 has specifically overruled the decisions of this Court in the case of Pune Municipal Corporation (supra) and Sree Balaji Nagar Residential Association (supra). In paragraph 366 it is observed and held as under:366. In view of the aforesaid discussion, we answer the questions as under:366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.3.2 In such a situation no relief of lapse of acquisition proceedings can be countenanced in this case in view of the law laid down by this Court in the case of Indore Development Authority (supra). Once it is held that there is no lapse of acquisition proceedings under Section 24(2) of the 2013 Act, the land which has stood vested with the appellant continues to do. Also, there is no question of payment of any compensation to the writ petitioners in respect of the suit land as per the Act, 2013.However, the original writ petitioners shall be entitled to compensation under the Land Acquisition Act, 1894 as per Award No.102/1986-87 dated 19.09.1986 as referred to by the High Court in para 3 of the impugned judgment and order or in the event any enhancement is sought by the original writ petitioners in accordance with law.
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Kerala State Electricity Board Vs. S. Harisubramaniam and Others | Sarkaria, J.1. The appellant was a former employee of the West Coast Electric Supply Corporation, Cannanore. He joined the service of that Corporation as a Typist and store-keeper on September 23, 1943 and was promoted as a Chief clerk from April 15, 1945.2. The said Corporation was engaged in the business of supply of electricity on licence under the Electricity Act, 1910, and the Electricity Supply Act, 1948. The Corporation was running three units in Cannanore, Tellicherry and Calicut. The classification of ministerial and executive staff, rules of promotion, designation of posts, salary and other emoluments, etc. were the same in all the three Units. The units at Cannanore and Tellicherry were taken over by the Government in exercise of its power under the Madras Electricity Undertakings (Acquisition) Act, 1954, and these Units were transferred to the newly formed Kerala State Electricity Board with effect from April 1, 1957, on condition that the Board shall retain the former employees of the Corporation pending final decision by the Government on the question of retention or otherwise of the persons in the staff of the company.3. On September 16, 1958, the Board issued a memo to the appellant, stating that he was absurd in the service of the Board as upper division clerk with effect from April 1, 1957, and that he would be said salary in the scale of Rs. 80-5-120-EB-6-150. That memo (Ext. P1) contained so many conditions which were not finally accepted by the appellant.4. At the time of absorption in the service of the Board, the respondent S. Harisubramaniam, was working as Chief Clerk in the Corporation. His contention was that he should have been absorbed in the supervisory cadre as a senior clerk which was subsequently upgraded as Junior Superintendents post.5. There, a dispute between the Electricity Board and the employees of the ex-licensee arose. The dispute was ultimately referred for adjudication to the Industrial Tribunal, Alleppey in 1966. During the pendency of the proceedings, the parties came to a settlement in relation to the principles of absorption of the staff and the fitness of the respective members in the service of the Board. The Tribunal passed an award in terms of the settlement. While implementing the award of the Tribunal, several persons junior to the respondent in that cadre were promoted to the Higher supervisory cadre.6. Shri V. S. Parameswaran and Shri T. A. Venkiteswaran of Calicut ex-licensees joined the service only on April 25, 1949 and August 5, 1949, respectively. They were working as chief clerks only from June 1, 1953 and April 1, 1963 respectively. These persons, were, however, elevated to Senior Superintendents post and Junior Superintendents cadre from August 1, 1963 onwards after the Calicut unit had also been taken over by the Board. The respondent, S. Harisubramaniam, was however, absorbed only as upper division clerks.7. Respondent 1, S. Harisubramaniam, filed a writ petition in the High Court of Kerala, challenging his supersession in the matter of promotion to supervisory cadres. He prayed for a direction that the Board should promote him to the supervisory cadre assigning him his due seniority and for other consequential reliefs. The Board opposed this writ petition and contended that the writ petitioner had no right to promotion, especially in view of Boards Order No. BSI-85/58 dated February 25, 1959 (Ext. R3), wherein it is specifically mentioned that the relaxation of test qualification in the case of employees mentioned therein, relates only to the post to which they are absorbed on the vesting date.8. The writ petition was heard by a learned single Judge of the High Court who allowed it and directed the Board to consider the claim of the petitioner for promotion under Rule 28(b)(ii) of the Kerala State and Subordinate Services Rules, 1958, with the observation that the exemption already granted will enure for the benefit of promotion to the Higher category as well.9. The Board filed a special appeal against the decision of the learned single Judge in the High Court. The appeal was dismissed by the Appellate Bench by a judgment dated February 13, 1973, following the Full Bench decision of the High Court in P. V. Parameswaran v. State of Kerala, (1972) K.L.T. 849.10. Hence this appeal by the Electricity Board.11. It is not disputed that the Kerala State Subordinate Services Rules apply in the case of S. Harisubramaniam, respondent, also. In the matter of promotion, also, he is governed by Rule 28(b)(ii) of the aforesaid Rules. The entire reasoning with which we have dismissed the State Appeal (C.A. No. 2036 of 1969) apply mutatis mutandis to the case of this respondent also. | 0[ds]11. It is not disputed that the Kerala State Subordinate Services Rules apply in the case of S. Harisubramaniam, respondent, also. In the matter of promotion, also, he is governed by Rule 28(b)(ii) of the aforesaid Rules. The entire reasoning with which we have dismissed the State Appeal (C.A. No. 2036 of 1969) apply mutatis mutandis to the case of this respondent also. | 0 | 886 | 85 | ### Instruction:
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Sarkaria, J.1. The appellant was a former employee of the West Coast Electric Supply Corporation, Cannanore. He joined the service of that Corporation as a Typist and store-keeper on September 23, 1943 and was promoted as a Chief clerk from April 15, 1945.2. The said Corporation was engaged in the business of supply of electricity on licence under the Electricity Act, 1910, and the Electricity Supply Act, 1948. The Corporation was running three units in Cannanore, Tellicherry and Calicut. The classification of ministerial and executive staff, rules of promotion, designation of posts, salary and other emoluments, etc. were the same in all the three Units. The units at Cannanore and Tellicherry were taken over by the Government in exercise of its power under the Madras Electricity Undertakings (Acquisition) Act, 1954, and these Units were transferred to the newly formed Kerala State Electricity Board with effect from April 1, 1957, on condition that the Board shall retain the former employees of the Corporation pending final decision by the Government on the question of retention or otherwise of the persons in the staff of the company.3. On September 16, 1958, the Board issued a memo to the appellant, stating that he was absurd in the service of the Board as upper division clerk with effect from April 1, 1957, and that he would be said salary in the scale of Rs. 80-5-120-EB-6-150. That memo (Ext. P1) contained so many conditions which were not finally accepted by the appellant.4. At the time of absorption in the service of the Board, the respondent S. Harisubramaniam, was working as Chief Clerk in the Corporation. His contention was that he should have been absorbed in the supervisory cadre as a senior clerk which was subsequently upgraded as Junior Superintendents post.5. There, a dispute between the Electricity Board and the employees of the ex-licensee arose. The dispute was ultimately referred for adjudication to the Industrial Tribunal, Alleppey in 1966. During the pendency of the proceedings, the parties came to a settlement in relation to the principles of absorption of the staff and the fitness of the respective members in the service of the Board. The Tribunal passed an award in terms of the settlement. While implementing the award of the Tribunal, several persons junior to the respondent in that cadre were promoted to the Higher supervisory cadre.6. Shri V. S. Parameswaran and Shri T. A. Venkiteswaran of Calicut ex-licensees joined the service only on April 25, 1949 and August 5, 1949, respectively. They were working as chief clerks only from June 1, 1953 and April 1, 1963 respectively. These persons, were, however, elevated to Senior Superintendents post and Junior Superintendents cadre from August 1, 1963 onwards after the Calicut unit had also been taken over by the Board. The respondent, S. Harisubramaniam, was however, absorbed only as upper division clerks.7. Respondent 1, S. Harisubramaniam, filed a writ petition in the High Court of Kerala, challenging his supersession in the matter of promotion to supervisory cadres. He prayed for a direction that the Board should promote him to the supervisory cadre assigning him his due seniority and for other consequential reliefs. The Board opposed this writ petition and contended that the writ petitioner had no right to promotion, especially in view of Boards Order No. BSI-85/58 dated February 25, 1959 (Ext. R3), wherein it is specifically mentioned that the relaxation of test qualification in the case of employees mentioned therein, relates only to the post to which they are absorbed on the vesting date.8. The writ petition was heard by a learned single Judge of the High Court who allowed it and directed the Board to consider the claim of the petitioner for promotion under Rule 28(b)(ii) of the Kerala State and Subordinate Services Rules, 1958, with the observation that the exemption already granted will enure for the benefit of promotion to the Higher category as well.9. The Board filed a special appeal against the decision of the learned single Judge in the High Court. The appeal was dismissed by the Appellate Bench by a judgment dated February 13, 1973, following the Full Bench decision of the High Court in P. V. Parameswaran v. State of Kerala, (1972) K.L.T. 849.10. Hence this appeal by the Electricity Board.11. It is not disputed that the Kerala State Subordinate Services Rules apply in the case of S. Harisubramaniam, respondent, also. In the matter of promotion, also, he is governed by Rule 28(b)(ii) of the aforesaid Rules. The entire reasoning with which we have dismissed the State Appeal (C.A. No. 2036 of 1969) apply mutatis mutandis to the case of this respondent also.
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0
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11. It is not disputed that the Kerala State Subordinate Services Rules apply in the case of S. Harisubramaniam, respondent, also. In the matter of promotion, also, he is governed by Rule 28(b)(ii) of the aforesaid Rules. The entire reasoning with which we have dismissed the State Appeal (C.A. No. 2036 of 1969) apply mutatis mutandis to the case of this respondent also.
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Paokai Haokip Vs. Rishang & Ors | which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if firing and that they had decided to vote en bloc for the election petitioner.This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast; he would have received all of them.The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to polls. This immediately cuts down the figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small. When we turn to the pattern of voting as is disclosed in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are actually polled. Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1097 votes went to the other candidates. In other words, out of 20 votes 11 went to other candidates, 3 to the election petitioner and 4 to the returned candidate. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he laboured and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. It is pointed out that at Tungam Khullen High School, he received 401 out of 522 votes. If this had been the general pattern, one could say that he would have got almost all the votes that had not been cast. But look at the other polling stations.At Litan L. P. School, he obtained 41 out of 347, at Chandel Junior Basic School he got 34 out of 172, at Purum Pantha L. P. School, he got 11 out of 338, at Toupokpi M. E. School 18 out of 128, at Oklu L. P. School 8 out of 17, at Chakpi Karong M. E. . School 2 out of 67, at Larong Khullen L. P. School 1 out of 53 and at Bolyang Tampak L. P. School 8 out of 249. While we do not think that statistics can be called in aid to prove such facts, because it is notorious that statistics can prove anything and made to lie for either case, it is open to us in reaching our conclusion to pay attention to the demonstrated pattern of voting.Having done so, we are quite satisfied that 1541 votes could not, by any reasonable guess, have been taken off from the lead of the returned candidate so as to make the election petitioner successful. In so far as the other contesting candidates are concerned they had received so few votes that even if they had received all the votes that had not been cast, it would not have mattered a little to the result of the election. The learned Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharmas case, 1955-1 SCR 509 = (AIR 1954 SC 513 ). He took the statement of the witnesses at their worth and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. For this, there is no foundation in fact; it is a surmise and it is anybodys guess as to how these people, who did not vote, would have actually voted.12. In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 10 (1) (d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged. | 1[ds]6. In this appeal, the returned candidate attempted to establish that polling was not so disorganised that it can be said that it did not take place. He attempted to show that even where the polling station was shifted it was a matter of few hundred yards and the people who went to vote knew the new location of the polling booths. He also submitted that, in any event, this had affected all the contesting candidates equally and the election petitioner could not, therefore, be said to have suffered more than the other candidates.This case without entering into the numerous details is confined to the above contentions of the rival parties. To begin with it is hardly necessary for us to go over the evidence with a view to ascertaining whether there had been or not a breach of the Act and the rules in the conduct of the election at thisFurther it is pointed out that the burden of proof in England was the exact reverse of that laid down by the Indian Statutes. There, the returned candidate has to prove that the non-compliance or mistake did not affect the result of the election. In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.10. Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.11. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if firing and that they had decided to vote en bloc for the election petitioner.This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast; he would have received all of them.The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to polls. This immediately cuts down the figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small. When we turn to the pattern of voting as is disclosed in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are actually polled. Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1097 votes went to the other candidates. In other words, out of 20 votes 11 went to other candidates, 3 to the election petitioner and 4 to the returned candidate. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he laboured and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. It is pointed out that at Tungam Khullen High School, he received 401 out of 522 votes.In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 10 (1) (d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged. | 1 | 2,960 | 1,034 | ### Instruction:
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which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if firing and that they had decided to vote en bloc for the election petitioner.This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast; he would have received all of them.The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to polls. This immediately cuts down the figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small. When we turn to the pattern of voting as is disclosed in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are actually polled. Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1097 votes went to the other candidates. In other words, out of 20 votes 11 went to other candidates, 3 to the election petitioner and 4 to the returned candidate. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he laboured and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. It is pointed out that at Tungam Khullen High School, he received 401 out of 522 votes. If this had been the general pattern, one could say that he would have got almost all the votes that had not been cast. But look at the other polling stations.At Litan L. P. School, he obtained 41 out of 347, at Chandel Junior Basic School he got 34 out of 172, at Purum Pantha L. P. School, he got 11 out of 338, at Toupokpi M. E. School 18 out of 128, at Oklu L. P. School 8 out of 17, at Chakpi Karong M. E. . School 2 out of 67, at Larong Khullen L. P. School 1 out of 53 and at Bolyang Tampak L. P. School 8 out of 249. While we do not think that statistics can be called in aid to prove such facts, because it is notorious that statistics can prove anything and made to lie for either case, it is open to us in reaching our conclusion to pay attention to the demonstrated pattern of voting.Having done so, we are quite satisfied that 1541 votes could not, by any reasonable guess, have been taken off from the lead of the returned candidate so as to make the election petitioner successful. In so far as the other contesting candidates are concerned they had received so few votes that even if they had received all the votes that had not been cast, it would not have mattered a little to the result of the election. The learned Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharmas case, 1955-1 SCR 509 = (AIR 1954 SC 513 ). He took the statement of the witnesses at their worth and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. For this, there is no foundation in fact; it is a surmise and it is anybodys guess as to how these people, who did not vote, would have actually voted.12. In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 10 (1) (d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged.
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### Explanation:
6. In this appeal, the returned candidate attempted to establish that polling was not so disorganised that it can be said that it did not take place. He attempted to show that even where the polling station was shifted it was a matter of few hundred yards and the people who went to vote knew the new location of the polling booths. He also submitted that, in any event, this had affected all the contesting candidates equally and the election petitioner could not, therefore, be said to have suffered more than the other candidates.This case without entering into the numerous details is confined to the above contentions of the rival parties. To begin with it is hardly necessary for us to go over the evidence with a view to ascertaining whether there had been or not a breach of the Act and the rules in the conduct of the election at thisFurther it is pointed out that the burden of proof in England was the exact reverse of that laid down by the Indian Statutes. There, the returned candidate has to prove that the non-compliance or mistake did not affect the result of the election. In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.10. Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.11. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if firing and that they had decided to vote en bloc for the election petitioner.This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast; he would have received all of them.The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to polls. This immediately cuts down the figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small. When we turn to the pattern of voting as is disclosed in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are actually polled. Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1097 votes went to the other candidates. In other words, out of 20 votes 11 went to other candidates, 3 to the election petitioner and 4 to the returned candidate. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he laboured and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. It is pointed out that at Tungam Khullen High School, he received 401 out of 522 votes.In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 10 (1) (d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged.
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Rajasthan R.S.S. & Ginning Mills Fed.Ltd Vs. Dy. Commnr. Of Income Tax, Jaipur | question of carrying forward accumulated losses of the amalgamating societies and adjusting them against the profits of the appellant society.11. He had drawn our attention to the provisions of Section 72 and 72A of the Act. He had further submitted that upon conjoint reading of Section 72 and 72A of the Act, it is clear that the co-operative societies cannot get the benefit of carrying forward and setting off accumulated losses if the said societies were not in existence. Only in case of a ‘company’, the benefit of set off could be availed by an amalgamated company, if the amalgamating company had accumulated losses which could have been carried forward and adjusted against the profits of the amalgamated company in accordance with the provisions of the Act.12. So as to substantiate his submissions, he had relied upon judgments delivered in the case of The Commissioner of Income Tax, Lucknow v. Sh. Madho Pd. Jatia 1976(4) SCC 92 and M/s. Baidyanath Ayurved Bhawan (Pvt.) Ltd., Jhansi v. The Excise Commissioner, U.P. and others 1971(1) SCC 4. He had also relied upon the judgment delivered in the case of Commissioner of Income Tax, Bombay v. Maharashtra Sugar Mills Ltd., Bombay 1971 (3) SCC 543. Upon perusal of the aforestated judgments, which support the learned counsel appearing for the Income Tax authorities, it is clear that the tax statute should be interpreted very strictly as there is no equity in tax matters and nothing can be read which is not in the section.13. Thus, the learned counsel appearing for the respondent authorities had submitted that the impugned judgment is just and correct and therefore, the appeal deserved to be dismissed. 14. We had heard the learned counsel and had also perused records pertaining to the case and had also gone through the judgments referred to by them, and upon hearing them we are of the view that the judgment delivered by the High Court is absolutely just and proper. 15. The main submission of the learned counsel appearing for the appellant society was that the appellant society, being an amalgamated society, must get benefit of setting off losses of the co-operative societies which had been amalgamated into the appellant society. According to him by virtue of the provisions of Section 16(8) of the Rajasthan Co-operative Societies Act, 1965, read with Sections 72 and 72(A) of the Act, the accumulated losses of the amalgamating societies should have been permitted to be adjusted or set off against the profits of the appellant society. His main submission was that by virtue of Section 16(8) of the Rajasthan Co-operative Societies Act, 1965 all legal proceedings initiated against or by the amalgamating co-operative societies would continue and therefore, right of the amalgamating societies with regard to getting their losses carried forward and set off against the profits of the amalgamated society would continue. 16. We are not in agreement with the submissions made by the learned counsel appearing for the appellant for the reason that for the purpose of getting carried forward losses adjusted or set off against the profits of subsequent years, there must be some provision in the Act. If there is no provision, the societies which are not in existence cannot get any benefit. The losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society.17. The normal principle is that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. In the circumstances, those societies had no right under the provisions of the Act to file a return to get their earlier losses adjusted against the income of a different legal personality i.e. the appellant society.18. So far as companies are concerned, there is a specific provision in the Act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the Act. This is permissible by virtue of Section 72 A of the Act but there is no such provision in the case of co-operative societies.19. It is pertinent to note that such a provision has been made only with regard to amalgamation of companies and later on similar provisions were made with regard to banks, etc., but at the relevant time there was no such provision which would permit the amalgamating co-operative society to carry forward and adjust such losses against the profits of the amalgamated co-operative society.20. The submission made by the learned counsel appearing for the appellant with regard to discrimination and violation of Article 14 of the Constitution of India would also not help the appellant, as in our opinion, there is no discrimination. The societies and companies belong to different classes and simply because both have a distinct legal personality, it cannot be said that both must be given the same treatment. 21. We agree with the view expressed by the High Court that as there is no provision under the Act for setting off accumulated losses of the amalgamating societies against the profits of the amalgamated society, the appellant society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant Assessment Year. 22. We are also of the view that in all the tax matters one has to interpret taxation statute strictly. Simply because one class of legal entities are given some benefit which is specifically stated in the Act does not mean that the legal entities not referred to in the Act would also get the same benefit. As stated by this Court on several occasions, there is no equity in matters of taxation. | 0[ds]14. We had heard the learned counsel and had also perused records pertaining to the case and had also gone through the judgments referred to by them, and upon hearing them we are of the view that the judgment delivered by the High Court is absolutely just and proper.We are not in agreement with the submissions made by the learned counsel appearing for the appellant for the reason that for the purpose of getting carried forward losses adjusted or set off against the profits of subsequent years, there must be some provision in the Act. If there is no provision, the societies which are not in existence cannot get any benefit. The losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society.17. The normal principle is that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. In the circumstances, those societies had no right under the provisions of the Act to file a return to get their earlier losses adjusted against the income of a different legal personality i.e. the appellant society.18. So far as companies are concerned, there is a specific provision in the Act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the Act. This is permissible by virtue of Section 72 A of the Act but there is no such provision in the case of co-operative societies.19. It is pertinent to note that such a provision has been made only with regard to amalgamation of companies and later on similar provisions were made with regard to banks, etc., but at the relevant time there was no such provision which would permit the amalgamating co-operative society to carry forward and adjust such losses against the profits of the amalgamated co-operative society.20. The submission made by the learned counsel appearing for the appellant with regard to discrimination and violation of Article 14 of the Constitution of India would also not help the appellant, as in our opinion, there is no discrimination. The societies and companies belong to different classes and simply because both have a distinct legal personality, it cannot be said that both must be given the same treatment.We agree with the view expressed by the High Court that as there is no provision under the Act for setting off accumulated losses of the amalgamating societies against the profits of the amalgamated society, the appellant society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant Assessment Year.We are also of the view that in all the tax matters one has to interpret taxation statute strictly. Simply because one class of legal entities are given some benefit which is specifically stated in the Act does not mean that the legal entities not referred to in the Act would also get the same benefit. As stated by this Court on several occasions, there is no equity in matters of taxation. | 0 | 2,358 | 607 | ### 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:
question of carrying forward accumulated losses of the amalgamating societies and adjusting them against the profits of the appellant society.11. He had drawn our attention to the provisions of Section 72 and 72A of the Act. He had further submitted that upon conjoint reading of Section 72 and 72A of the Act, it is clear that the co-operative societies cannot get the benefit of carrying forward and setting off accumulated losses if the said societies were not in existence. Only in case of a ‘company’, the benefit of set off could be availed by an amalgamated company, if the amalgamating company had accumulated losses which could have been carried forward and adjusted against the profits of the amalgamated company in accordance with the provisions of the Act.12. So as to substantiate his submissions, he had relied upon judgments delivered in the case of The Commissioner of Income Tax, Lucknow v. Sh. Madho Pd. Jatia 1976(4) SCC 92 and M/s. Baidyanath Ayurved Bhawan (Pvt.) Ltd., Jhansi v. The Excise Commissioner, U.P. and others 1971(1) SCC 4. He had also relied upon the judgment delivered in the case of Commissioner of Income Tax, Bombay v. Maharashtra Sugar Mills Ltd., Bombay 1971 (3) SCC 543. Upon perusal of the aforestated judgments, which support the learned counsel appearing for the Income Tax authorities, it is clear that the tax statute should be interpreted very strictly as there is no equity in tax matters and nothing can be read which is not in the section.13. Thus, the learned counsel appearing for the respondent authorities had submitted that the impugned judgment is just and correct and therefore, the appeal deserved to be dismissed. 14. We had heard the learned counsel and had also perused records pertaining to the case and had also gone through the judgments referred to by them, and upon hearing them we are of the view that the judgment delivered by the High Court is absolutely just and proper. 15. The main submission of the learned counsel appearing for the appellant society was that the appellant society, being an amalgamated society, must get benefit of setting off losses of the co-operative societies which had been amalgamated into the appellant society. According to him by virtue of the provisions of Section 16(8) of the Rajasthan Co-operative Societies Act, 1965, read with Sections 72 and 72(A) of the Act, the accumulated losses of the amalgamating societies should have been permitted to be adjusted or set off against the profits of the appellant society. His main submission was that by virtue of Section 16(8) of the Rajasthan Co-operative Societies Act, 1965 all legal proceedings initiated against or by the amalgamating co-operative societies would continue and therefore, right of the amalgamating societies with regard to getting their losses carried forward and set off against the profits of the amalgamated society would continue. 16. We are not in agreement with the submissions made by the learned counsel appearing for the appellant for the reason that for the purpose of getting carried forward losses adjusted or set off against the profits of subsequent years, there must be some provision in the Act. If there is no provision, the societies which are not in existence cannot get any benefit. The losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society.17. The normal principle is that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. In the circumstances, those societies had no right under the provisions of the Act to file a return to get their earlier losses adjusted against the income of a different legal personality i.e. the appellant society.18. So far as companies are concerned, there is a specific provision in the Act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the Act. This is permissible by virtue of Section 72 A of the Act but there is no such provision in the case of co-operative societies.19. It is pertinent to note that such a provision has been made only with regard to amalgamation of companies and later on similar provisions were made with regard to banks, etc., but at the relevant time there was no such provision which would permit the amalgamating co-operative society to carry forward and adjust such losses against the profits of the amalgamated co-operative society.20. The submission made by the learned counsel appearing for the appellant with regard to discrimination and violation of Article 14 of the Constitution of India would also not help the appellant, as in our opinion, there is no discrimination. The societies and companies belong to different classes and simply because both have a distinct legal personality, it cannot be said that both must be given the same treatment. 21. We agree with the view expressed by the High Court that as there is no provision under the Act for setting off accumulated losses of the amalgamating societies against the profits of the amalgamated society, the appellant society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant Assessment Year. 22. We are also of the view that in all the tax matters one has to interpret taxation statute strictly. Simply because one class of legal entities are given some benefit which is specifically stated in the Act does not mean that the legal entities not referred to in the Act would also get the same benefit. As stated by this Court on several occasions, there is no equity in matters of taxation.
### Response:
0
### Explanation:
14. We had heard the learned counsel and had also perused records pertaining to the case and had also gone through the judgments referred to by them, and upon hearing them we are of the view that the judgment delivered by the High Court is absolutely just and proper.We are not in agreement with the submissions made by the learned counsel appearing for the appellant for the reason that for the purpose of getting carried forward losses adjusted or set off against the profits of subsequent years, there must be some provision in the Act. If there is no provision, the societies which are not in existence cannot get any benefit. The losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society.17. The normal principle is that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. In the circumstances, those societies had no right under the provisions of the Act to file a return to get their earlier losses adjusted against the income of a different legal personality i.e. the appellant society.18. So far as companies are concerned, there is a specific provision in the Act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the Act. This is permissible by virtue of Section 72 A of the Act but there is no such provision in the case of co-operative societies.19. It is pertinent to note that such a provision has been made only with regard to amalgamation of companies and later on similar provisions were made with regard to banks, etc., but at the relevant time there was no such provision which would permit the amalgamating co-operative society to carry forward and adjust such losses against the profits of the amalgamated co-operative society.20. The submission made by the learned counsel appearing for the appellant with regard to discrimination and violation of Article 14 of the Constitution of India would also not help the appellant, as in our opinion, there is no discrimination. The societies and companies belong to different classes and simply because both have a distinct legal personality, it cannot be said that both must be given the same treatment.We agree with the view expressed by the High Court that as there is no provision under the Act for setting off accumulated losses of the amalgamating societies against the profits of the amalgamated society, the appellant society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant Assessment Year.We are also of the view that in all the tax matters one has to interpret taxation statute strictly. Simply because one class of legal entities are given some benefit which is specifically stated in the Act does not mean that the legal entities not referred to in the Act would also get the same benefit. As stated by this Court on several occasions, there is no equity in matters of taxation.
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DR. KRITI LAKHINA Vs. THE STATE OF KARNATAKA | levels of education like postgraduate medical courses, such as MD. In the language of Krishna Iyer, J.: (SCC pp. 778-79, para 23) ‘ 23. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure all the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the- making is a national loss, the considerations we have expanded upon a important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk.? 13. Relying on the aforesaid reasons in Jagadish Saran v. Union of India, a three-Judge Bench of this Court in Pradeep Jain case held that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and therefore reservation based on residential requirement in the State will affect the right to equality of opportunity under Article 14 of the Constitution….? In Magan Mehrotra v. Union of India and Saurabh Chaudri v. Union of India also, this Court has approved the aforesaid view in Pradeep Jain case that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and will affect the right to equality of opportunity under Article 14 of the Constitution 11. Mr Mariarputham is right that in Saurabh Chaudri v. Union of India this Court has held that institutional preference can be given by a State, but in the aforesaid decision of Saurabh Chaudri, it has also been held that decision of the State to give institutional preference can be invalidated by the court in the event it is shown that the decision of the State is ultra vires the right to equality under Article 14 of the Constitution. When we examine sub-clause (a) of Clause 2.1 of the two Information Bulletins, we find that the expression ?A candidate of Karnataka origin? who only is eligible to appear for entrance test has been so defined as to exclude a candidate who has studied MBBS or BDS in an institution in the State of Karnataka but who does not satisfy the other requirements of sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014. Thus, the institutional preference sought to be given by sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Pradeep Jain case. 12. To quote from para 22 of the judgment in Pradeep Jain case: (SCC p. 693) ?22. … a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university….? 13. Sub-clause (a) of Clause 2.1 of the two Information Bulletins does not actually give institutional preference to students who have passed MBBS or BDS from colleges or universities in the State of Karnataka, but makes some of them ineligible to take the entrance test for admission to postgraduate medical or dental courses in the State of Karnataka to which the Information Bulletins apply. ………… 15. In the result, we allow the writ petitions, declare sub-clause (a) of Clause 2.1 of the two Information Bulletins for postgraduate medical and dental courses for PGET-2014 as ultra vires Article 14 of the Constitution and null and void. The respondent will now publish fresh Information Bulletins and do the admissions to the postgraduate medical and dental courses in the government colleges as well as the State quota of the private colleges in accordance with the law by the end of June 2014 on the basis of the results of the entrance test already held. We also order that the general time schedule for counselling and admissions to postgraduate medical courses in our order dated 14-3-2014 in Fraz Naseem v. Union of India 12 will not apply to such admissions in the State of Karnataka for the academic year 2014-2015. Similarly, the general time schedule for counselling and admissions for postgraduate dental courses will not apply to such admissions in the State of Karnataka. The parties shall bear their own costs.? 12 (2014) 11 SCC 45314. Paragraphs 13 and 15 of the Judgment of this Court in Vishal Goyal (supra) are clear that the Information Bulletin for PGET-2014 did not actually give institutional preference to students who had passed MBBS/BDS from Colleges or universities in State of Karnataka but made some of them ineligible to take the entrance test for admission to Post- Graduate Medical or Dental Course in State of Karnataka and that said clause was held ultra vires Article 14 of the Constitution and declared null and void. The relevant clause under consideration, namely, Clause 4.1 of the Information Bulletin for PGET-2018 is identical in substance to the one that was considered in Vishal Goyal (supra). The matter is thus no longer res- integra and is completely covered by the decision in Vishal Goyal (supra). In the circumstances, we respectfully follow the decision of this Court in Vishal Goyal (supra) and hold Clause 4.1 of the Information Bulletin (PGET-2018) which was published on the website on 10.03.2018 to be invalid to the extent it disqualifies petitioners and similarly situated candidates who completed their MBBS/BDS Degree Courses from colleges situated in Karnataka from competing for admission to Post-Graduate Medical/Dental Courses in Government Medical Colleges and against government quota seats in non-governmental institutions | 1[ds]14. Paragraphs 13 and 15 of the Judgment of this Court in Vishal Goyal (supra) are clear that the Information Bulletin fordid not actually give institutional preference to students who had passed MBBS/BDS from Colleges or universities in State of Karnataka but made some of them ineligible to take the entrance test for admission to PostGraduate Medical or Dental Course in State of Karnataka and that said clause was held ultra vires Article 14 of the Constitution and declared null and void. The relevant clause under consideration, namely, Clause 4.1 of the Information Bulletin foris identical in substance to the one that was considered in Vishal Goyal (supra). The matter is thus no longer resintegra and is completely covered by the decision in Vishal Goyal (supra). In the circumstances, we respectfully follow the decision of this Court in Vishal Goyal (supra) and hold Clause 4.1 of the Information Bulletinwhich was published on the website on 10.03.2018 to be invalid to the extent it disqualifies petitioners and similarly situated candidates who completed their MBBS/BDS Degree Courses from colleges situated in Karnataka from competing for admission toMedical/Dental Courses in Government Medical Colleges and against government quota seats in | 1 | 4,482 | 215 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
levels of education like postgraduate medical courses, such as MD. In the language of Krishna Iyer, J.: (SCC pp. 778-79, para 23) ‘ 23. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure all the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the- making is a national loss, the considerations we have expanded upon a important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk.? 13. Relying on the aforesaid reasons in Jagadish Saran v. Union of India, a three-Judge Bench of this Court in Pradeep Jain case held that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and therefore reservation based on residential requirement in the State will affect the right to equality of opportunity under Article 14 of the Constitution….? In Magan Mehrotra v. Union of India and Saurabh Chaudri v. Union of India also, this Court has approved the aforesaid view in Pradeep Jain case that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and will affect the right to equality of opportunity under Article 14 of the Constitution 11. Mr Mariarputham is right that in Saurabh Chaudri v. Union of India this Court has held that institutional preference can be given by a State, but in the aforesaid decision of Saurabh Chaudri, it has also been held that decision of the State to give institutional preference can be invalidated by the court in the event it is shown that the decision of the State is ultra vires the right to equality under Article 14 of the Constitution. When we examine sub-clause (a) of Clause 2.1 of the two Information Bulletins, we find that the expression ?A candidate of Karnataka origin? who only is eligible to appear for entrance test has been so defined as to exclude a candidate who has studied MBBS or BDS in an institution in the State of Karnataka but who does not satisfy the other requirements of sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014. Thus, the institutional preference sought to be given by sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Pradeep Jain case. 12. To quote from para 22 of the judgment in Pradeep Jain case: (SCC p. 693) ?22. … a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university….? 13. Sub-clause (a) of Clause 2.1 of the two Information Bulletins does not actually give institutional preference to students who have passed MBBS or BDS from colleges or universities in the State of Karnataka, but makes some of them ineligible to take the entrance test for admission to postgraduate medical or dental courses in the State of Karnataka to which the Information Bulletins apply. ………… 15. In the result, we allow the writ petitions, declare sub-clause (a) of Clause 2.1 of the two Information Bulletins for postgraduate medical and dental courses for PGET-2014 as ultra vires Article 14 of the Constitution and null and void. The respondent will now publish fresh Information Bulletins and do the admissions to the postgraduate medical and dental courses in the government colleges as well as the State quota of the private colleges in accordance with the law by the end of June 2014 on the basis of the results of the entrance test already held. We also order that the general time schedule for counselling and admissions to postgraduate medical courses in our order dated 14-3-2014 in Fraz Naseem v. Union of India 12 will not apply to such admissions in the State of Karnataka for the academic year 2014-2015. Similarly, the general time schedule for counselling and admissions for postgraduate dental courses will not apply to such admissions in the State of Karnataka. The parties shall bear their own costs.? 12 (2014) 11 SCC 45314. Paragraphs 13 and 15 of the Judgment of this Court in Vishal Goyal (supra) are clear that the Information Bulletin for PGET-2014 did not actually give institutional preference to students who had passed MBBS/BDS from Colleges or universities in State of Karnataka but made some of them ineligible to take the entrance test for admission to Post- Graduate Medical or Dental Course in State of Karnataka and that said clause was held ultra vires Article 14 of the Constitution and declared null and void. The relevant clause under consideration, namely, Clause 4.1 of the Information Bulletin for PGET-2018 is identical in substance to the one that was considered in Vishal Goyal (supra). The matter is thus no longer res- integra and is completely covered by the decision in Vishal Goyal (supra). In the circumstances, we respectfully follow the decision of this Court in Vishal Goyal (supra) and hold Clause 4.1 of the Information Bulletin (PGET-2018) which was published on the website on 10.03.2018 to be invalid to the extent it disqualifies petitioners and similarly situated candidates who completed their MBBS/BDS Degree Courses from colleges situated in Karnataka from competing for admission to Post-Graduate Medical/Dental Courses in Government Medical Colleges and against government quota seats in non-governmental institutions
### Response:
1
### Explanation:
14. Paragraphs 13 and 15 of the Judgment of this Court in Vishal Goyal (supra) are clear that the Information Bulletin fordid not actually give institutional preference to students who had passed MBBS/BDS from Colleges or universities in State of Karnataka but made some of them ineligible to take the entrance test for admission to PostGraduate Medical or Dental Course in State of Karnataka and that said clause was held ultra vires Article 14 of the Constitution and declared null and void. The relevant clause under consideration, namely, Clause 4.1 of the Information Bulletin foris identical in substance to the one that was considered in Vishal Goyal (supra). The matter is thus no longer resintegra and is completely covered by the decision in Vishal Goyal (supra). In the circumstances, we respectfully follow the decision of this Court in Vishal Goyal (supra) and hold Clause 4.1 of the Information Bulletinwhich was published on the website on 10.03.2018 to be invalid to the extent it disqualifies petitioners and similarly situated candidates who completed their MBBS/BDS Degree Courses from colleges situated in Karnataka from competing for admission toMedical/Dental Courses in Government Medical Colleges and against government quota seats in
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Prs Permacel Private Limited, Mumbai Vs. Johnson & Johnson Employees Union & Others | even a slightest explanation for delay in submitting his/its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate government shall leave the determination of the question of belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases."37. It is a social welfare legislation and, in view of the above enunciated principle of law essentially should receive an interpretation which would help in achieving the object of the statute that is protecting the workman against exploitation and prolonged litigation.38. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are on the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party as to permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance."13. The reliance is placed upon the case of National Engineering Industries Ltd. v. State of Rajasthan and Others (supra), by the learned counsel appearing for the petitioner does not really forward the case of the petitioner. The High Court has the jurisdiction to entertain a writ petition but this jurisdiction normally would not be used where the matter can appropriately be adjudicated upon by the Labour or Industrial Courts as the case may be. There is no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under Section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and Johnson & Johnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite production target.14. What is the effect of the orders passel by the Courts, in previous litigation, can safe be considered by the Labour Court while adjudicating the reference made to it by the appropriate Government vide order dated Jun 22, 2007. The dispute referred has two facet Firstly, with regard to the alleged lock out being illegal and secondly, the rights of the workmen to perform their duties without insisting upon the alleged undertaking as a condition precedent for performance of substitutes and resultantly, the wages and salaries which the workmen are entitled to. The reference made by the Government is so wide that the parties can safely adduced appropriate evidence to substantiate their respective trends, determination of which without such evidence is hardly possible. The exercise of jurisdiction by the appropriate Government, the parties could not have been asked to produce documentary and oral evidence. The controversies raised in the present writ petition are of such nature that it will not be just and fair to pronounce upon them without affording opportunities to the parties to lead evidence. In fact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this Court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India. In fact, in Wyeth Employees Union v. Araine Orgachem Pvt. Ltd. and Others, 2007 CLR 315, this Court had directed the appropriate Government to consider making of a reference which it had felt on the ground that the workmen having taken the benefit of the various documents their existed no relationship of employer-employees between the parties. The workmen had taken up the ground of fraud and they were coerced into signing the scheme. It was held that the Government has to form an opinion as to the existence of employer-employee relationship and whether the dispute exists or is apprehended. Thus, the jurisdiction of the appropriate Government has limited scope. Of course, it is not to be exercised in a mechanical manner. In the case of National Organic Chemical Industries Limited v. State of Maharashtra and Others (supra), in somewhat similar circumstances the Court had dismissed the writ petition and directed that the matter may proceed before the appropriate Industrial/Labour Court which was further directed to determine the questions and controversies raised before it in accordance with law. In some cases, the Industrial Court, while answering the reference made to it by the appropriate Government under Section 10, may have to decide ancillary questions and there will be no legal impediment in doing so. | 0[ds]It is admitted that the demand letter was submitted to the Commissioner on December 11, 2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services, which culminated into issuance of letter dated February 11, 2008 vide conciliation in regard to settlement between theupon the order dated August 29, 2006 and a clarificatory order dated September 11, 2006 passed in Writ Petition (Lodging) No. 2028/2006 it is stated that the contention of respondent No. 4 in that writ petition averred that they were employees of Johnson and Johnson Limited stood concluded. In regard to plea of fraud, they were granted liberty to take steps, which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law.The petitioner company had also issued a notice dated August 17, 2006 indicating various facets of the litigation in relation to transfer and problem of production and discipline. The consent letter which was required to be executed by the workmen was replied to by the union vide Exhibit "I" stating that they would not execute the same and later submitted the amended undertaking as mentioned above.According to the Respondent Union, the order of reference is proper and is within the four corners of law. The reference including the dispute ofis wide open and has not been finally concluded particularly in face of their plea that the orders were obtained by fraud. There is no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present writ petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competentis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under Section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this Court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India. | 0 | 6,701 | 710 | ### 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:
even a slightest explanation for delay in submitting his/its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate government shall leave the determination of the question of belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases."37. It is a social welfare legislation and, in view of the above enunciated principle of law essentially should receive an interpretation which would help in achieving the object of the statute that is protecting the workman against exploitation and prolonged litigation.38. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are on the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party as to permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance."13. The reliance is placed upon the case of National Engineering Industries Ltd. v. State of Rajasthan and Others (supra), by the learned counsel appearing for the petitioner does not really forward the case of the petitioner. The High Court has the jurisdiction to entertain a writ petition but this jurisdiction normally would not be used where the matter can appropriately be adjudicated upon by the Labour or Industrial Courts as the case may be. There is no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under Section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and Johnson & Johnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite production target.14. What is the effect of the orders passel by the Courts, in previous litigation, can safe be considered by the Labour Court while adjudicating the reference made to it by the appropriate Government vide order dated Jun 22, 2007. The dispute referred has two facet Firstly, with regard to the alleged lock out being illegal and secondly, the rights of the workmen to perform their duties without insisting upon the alleged undertaking as a condition precedent for performance of substitutes and resultantly, the wages and salaries which the workmen are entitled to. The reference made by the Government is so wide that the parties can safely adduced appropriate evidence to substantiate their respective trends, determination of which without such evidence is hardly possible. The exercise of jurisdiction by the appropriate Government, the parties could not have been asked to produce documentary and oral evidence. The controversies raised in the present writ petition are of such nature that it will not be just and fair to pronounce upon them without affording opportunities to the parties to lead evidence. In fact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this Court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India. In fact, in Wyeth Employees Union v. Araine Orgachem Pvt. Ltd. and Others, 2007 CLR 315, this Court had directed the appropriate Government to consider making of a reference which it had felt on the ground that the workmen having taken the benefit of the various documents their existed no relationship of employer-employees between the parties. The workmen had taken up the ground of fraud and they were coerced into signing the scheme. It was held that the Government has to form an opinion as to the existence of employer-employee relationship and whether the dispute exists or is apprehended. Thus, the jurisdiction of the appropriate Government has limited scope. Of course, it is not to be exercised in a mechanical manner. In the case of National Organic Chemical Industries Limited v. State of Maharashtra and Others (supra), in somewhat similar circumstances the Court had dismissed the writ petition and directed that the matter may proceed before the appropriate Industrial/Labour Court which was further directed to determine the questions and controversies raised before it in accordance with law. In some cases, the Industrial Court, while answering the reference made to it by the appropriate Government under Section 10, may have to decide ancillary questions and there will be no legal impediment in doing so.
### Response:
0
### Explanation:
It is admitted that the demand letter was submitted to the Commissioner on December 11, 2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services, which culminated into issuance of letter dated February 11, 2008 vide conciliation in regard to settlement between theupon the order dated August 29, 2006 and a clarificatory order dated September 11, 2006 passed in Writ Petition (Lodging) No. 2028/2006 it is stated that the contention of respondent No. 4 in that writ petition averred that they were employees of Johnson and Johnson Limited stood concluded. In regard to plea of fraud, they were granted liberty to take steps, which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law.The petitioner company had also issued a notice dated August 17, 2006 indicating various facets of the litigation in relation to transfer and problem of production and discipline. The consent letter which was required to be executed by the workmen was replied to by the union vide Exhibit "I" stating that they would not execute the same and later submitted the amended undertaking as mentioned above.According to the Respondent Union, the order of reference is proper and is within the four corners of law. The reference including the dispute ofis wide open and has not been finally concluded particularly in face of their plea that the orders were obtained by fraud. There is no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present writ petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competentis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under Section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this Court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.
|
Principal, Patna College, Patna, And Others Vs. Kalyan Srinivas Raman | per cent attendance by reference to the lectures, tutorials and practicals which is prescribed for this latter category of examinations, was not of a different character at all. This requirement had to be satisfied by reference to each one of them, viz., the lectures, tutorials and practicals as the case may be. Instead of repeating sub-cls. (i) and (ii) of Regulation 1 (7), Regulation 5 (1) merely for the sake of convenience, has compressed the said two clauses into one clause; and so, we think the High Court was in error in assuming that under the old regulations with regard to this latter class of examinations, the requirement as to 75 per cent attendance was in any way different from the same requirement in regard to the examinations mentioned in the first part of the said regulation.19. But assuming for the sake of argument that the said requirement was different in regard to the latter category of examinations, it is not easy to see how that can support the conclusion that the present Regulation 4 has assimilated all the examinations to the said latter class of examinations in Regulation 5 (1) by prescribing that 75 per cent attendance need not be in relation to the lectures, tutorials and practicals separately, but should be in relation to all the three taken collectively. In our opinion, having regard to the context, it would be more reasonable to hold that the present regulation prescribed the requirement as to 75 per cent attendance in lectures, tutorials and/or practicals separately in relation to all the examinations.20. Mr. Basudev Prasad has sought to rely on Regulation 9 contained in Chapter VI of the Examination Regulations which deal with B.A. Part I examination of the Three - Year Degree Course in Arts. The said regulation provides that in order to pass the Degree Part I examination, a candidate must obtain not less than 30 per cent of the total marks in each subject and 33 per cent in the aggregate. He argues that the provision of Regulation 9 would support the respondents case that it could not have been the intention of Regulation 4 to require that the regular course of study contemplated by it postulates 75 per cent attendance at lectures, tutorials and/or practicals taken severally and not conjointly. We are unable to see how the provision made by Regulation 9 dealing with the examinations can be material in construing the words used in Regulation 4. Therefore, we do not think Mr. Basudev Prasad is right in contending that Regulation 9 of the Examination Regulations supports the respondents case.21. It appears that before the writ petition was filed by the respondent in the present case, his father Mr. C. K. Raman, I. C S., wrote a long letter on April 11, 1965 to appellant No. 1 inviting him to reconsider his decision in the case of his son and to allow his son to take the University examination in question. In this long communication which is argumentative, the respondents father has adopted to tone which indicates that he attempted to throw his weight about in persuading appellant No. 1 to cancel the impugned notice. Appellant No. 1 promptly replied to the said communication and informed the respondents father that he had referred the case of the respondent to the Vice-Chancellor with a statement of his attendance together with his letter for such action as he thought best under the circumstances. Appellant No. 1 added that the Vice-Chancellor had decided that it was not possible to accept the request made by the respondents father as the University regulations did not permit the same.22. It would be recalled that the impugned notice was published on March 29, 1965, and the letter written by the respondents father on the 11th April was replied by appellant No. 1 on the 12th April. Even so, the respondent did not file his writ petition until Sunday, the 18th April; and as we have already mentioned, the writ petition was presented at the bungalow of the Chief Justice and was heard for admission and interim orders on Sunday night. It is true that if justice demands that the Court should receive a petition even on Sunday, the Court should and ought to accept the petition; but having regard to the fact that the petitioner postponed the filling of the application until Sunday (18th April 1965) night, and other relevant circumstances to which we have already adverted, we think it would have been better if the High Court not passed an interim order on the said night as it has done. It is hardly necessary to emphasise that in dealing with matters relating to orders passed by authorities of educational institutions under Art. 226 of the Constitution, the High Court should normally be very slow to pass ex parte interim orders, because matters falling within the jurisdiction of the educational authorities should normally be left to their decision, and the High Court should interfere with them only when it thinks it must do so in the interests of justice.23. Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Courts jurisdiction to issue a writ of certiorari are well recognised and it is, on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind.24. | 1[ds]In dealing with regulation 4, it is necessary to bear in mind two broad considerations. The first consideration is that the modern methodology of education in all civilised countries attaches considerable importance to the tutorials and the practical work done by the student in addition to attending lectures. The tendency in modern times is to bring the students into direct personal contact with the tutors so as the enable the tutors to guide and coach the students individually as far as may be possible. For that purpose, small groups of students are formed who are placed under different tutors for different subjects. The importance of practicals has also been well recognised and education does no longer depend merely upon lectures as it used to do at one time in our country. The second consideration which may not be irrelevant is that eversince the present regulations were brought into force in 1961, appellant No. 3 and colleges within its jurisdiction appear to have consistently interpreted Regulation 4 in the manner suggested by appellant No. 3. It is of course true that the two considerations to which we have just referred cannot materially govern the construction of the regulation; that must inevitably depend upon the words used by the regulation itself; but in interpreting the words, these two considerations may not be treated asHigh Court has, no doubt, made an emphatic finding that the relevant words used in this regulation admit of only one construction, and that is that the requirement of 75 per cent attendance has to be judged by reference to lectures, tutorials and/or practicals all taken together. We are unable to agree. It seems to us that in the context, it is more reasonable to hold that the said requirement must be read disjunctively; and so, it must be satisfied by the student by reference to lectures, tutorials and/or practicals as the case may be.14. Inview of this position, it seems somewhat difficult to accept the correctness of the conclusion reached by the High Court that the requirement about 75 per cent attendance must be taken collectively. It is clear that if the said requirement is read collectively, a student may be entitled to claim to have completed the regular course of study without attending any single practical or tutorial, as the case may be, if he has attended all the lectures in a given subject. Take, for instance, the case of English, History, or Political Science in the group for which the respondent was studying. It is not disputed by Mr. Basudev Prasad that in these subjects theoretically, it would be open to the student to attend the maximum number of lectures and not to do any tutorial at all. In other words, the construction placed by the High Court upon Regulation 4 leads to this unreasonable consequence that attendance at the lectures alone may, in a given case, entitled a student to appear for the examination, though he may have done no tutorial at all. In our opinion, this could not have been the intention of the regulation. It is true that the second clause of Regulation 4 requires that the percentage in question shall be calculated on the total number of lectures, tutorials and practicals delivered or provided during the session; but this provision is in the nature of a mere corollary to the main provision prescribed by Regulation 4, and, if the requirement as to 75 per cent attendance has been prescribed separately in relation to lectures, tutorials and/or practicals, the second clause in question must be read accordingly. Thus read, it only means that when the percentage is determined in reference to lectures, tutorials and practicals, what has to be taken into account is the total number of lectures delivered, or tutorials and practicals held during the session in question. We have carefully considered the reasons given by the High Court in support of its conclusion, but we are not satisfied that those reasons justify the construction which the High Court has placed on the material words used in Regulation 4.It appears that before the writ petition was filed by the respondent in the present case, his father Mr. C. K. Raman, I. C S., wrote a long letter on April 11, 1965 to appellant No. 1 inviting him to reconsider his decision in the case of his son and to allow his son to take the University examination in question. In this long communication which is argumentative, the respondents father has adopted to tone which indicates that he attempted to throw his weight about in persuading appellant No. 1 to cancel the impugned notice. Appellant No. 1 promptly replied to the said communication and informed the respondents father that he had referred the case of the respondent to the Vice-Chancellor with a statement of his attendance together with his letter for such action as he thought best under the circumstances. Appellant No. 1 added that the Vice-Chancellor had decided that it was not possible to accept the request made by the respondents father as the University regulations did not permit the same.It would be recalled that the impugned notice was published on March 29, 1965, and the letter written by the respondents father on the 11th April was replied by appellant No. 1 on the 12th April. Even so, the respondent did not file his writ petition until Sunday, the 18th April; and as we have already mentioned, the writ petition was presented at the bungalow of the Chief Justice and was heard for admission and interim orders on Sunday night. It is true that if justice demands that the Court should receive a petition even on Sunday, the Court should and ought to accept the petition; but having regard to the fact that the petitioner postponed the filling of the application until Sunday (18th April 1965) night, and other relevant circumstances to which we have already adverted, we think it would have been better if the High Court not passed an interim order on the said night as it has done. It is hardly necessary to emphasise that in dealing with matters relating to orders passed by authorities of educational institutions under Art. 226 of the Constitution, the High Court should normally be very slow to pass ex parte interim orders, because matters falling within the jurisdiction of the educational authorities should normally be left to their decision, and the High Court should interfere with them only when it thinks it must do so in the interests of justice.Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Courts jurisdiction to issue a writ of certiorari are well recognised and it is, on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind. | 1 | 4,804 | 1,344 | ### 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:
per cent attendance by reference to the lectures, tutorials and practicals which is prescribed for this latter category of examinations, was not of a different character at all. This requirement had to be satisfied by reference to each one of them, viz., the lectures, tutorials and practicals as the case may be. Instead of repeating sub-cls. (i) and (ii) of Regulation 1 (7), Regulation 5 (1) merely for the sake of convenience, has compressed the said two clauses into one clause; and so, we think the High Court was in error in assuming that under the old regulations with regard to this latter class of examinations, the requirement as to 75 per cent attendance was in any way different from the same requirement in regard to the examinations mentioned in the first part of the said regulation.19. But assuming for the sake of argument that the said requirement was different in regard to the latter category of examinations, it is not easy to see how that can support the conclusion that the present Regulation 4 has assimilated all the examinations to the said latter class of examinations in Regulation 5 (1) by prescribing that 75 per cent attendance need not be in relation to the lectures, tutorials and practicals separately, but should be in relation to all the three taken collectively. In our opinion, having regard to the context, it would be more reasonable to hold that the present regulation prescribed the requirement as to 75 per cent attendance in lectures, tutorials and/or practicals separately in relation to all the examinations.20. Mr. Basudev Prasad has sought to rely on Regulation 9 contained in Chapter VI of the Examination Regulations which deal with B.A. Part I examination of the Three - Year Degree Course in Arts. The said regulation provides that in order to pass the Degree Part I examination, a candidate must obtain not less than 30 per cent of the total marks in each subject and 33 per cent in the aggregate. He argues that the provision of Regulation 9 would support the respondents case that it could not have been the intention of Regulation 4 to require that the regular course of study contemplated by it postulates 75 per cent attendance at lectures, tutorials and/or practicals taken severally and not conjointly. We are unable to see how the provision made by Regulation 9 dealing with the examinations can be material in construing the words used in Regulation 4. Therefore, we do not think Mr. Basudev Prasad is right in contending that Regulation 9 of the Examination Regulations supports the respondents case.21. It appears that before the writ petition was filed by the respondent in the present case, his father Mr. C. K. Raman, I. C S., wrote a long letter on April 11, 1965 to appellant No. 1 inviting him to reconsider his decision in the case of his son and to allow his son to take the University examination in question. In this long communication which is argumentative, the respondents father has adopted to tone which indicates that he attempted to throw his weight about in persuading appellant No. 1 to cancel the impugned notice. Appellant No. 1 promptly replied to the said communication and informed the respondents father that he had referred the case of the respondent to the Vice-Chancellor with a statement of his attendance together with his letter for such action as he thought best under the circumstances. Appellant No. 1 added that the Vice-Chancellor had decided that it was not possible to accept the request made by the respondents father as the University regulations did not permit the same.22. It would be recalled that the impugned notice was published on March 29, 1965, and the letter written by the respondents father on the 11th April was replied by appellant No. 1 on the 12th April. Even so, the respondent did not file his writ petition until Sunday, the 18th April; and as we have already mentioned, the writ petition was presented at the bungalow of the Chief Justice and was heard for admission and interim orders on Sunday night. It is true that if justice demands that the Court should receive a petition even on Sunday, the Court should and ought to accept the petition; but having regard to the fact that the petitioner postponed the filling of the application until Sunday (18th April 1965) night, and other relevant circumstances to which we have already adverted, we think it would have been better if the High Court not passed an interim order on the said night as it has done. It is hardly necessary to emphasise that in dealing with matters relating to orders passed by authorities of educational institutions under Art. 226 of the Constitution, the High Court should normally be very slow to pass ex parte interim orders, because matters falling within the jurisdiction of the educational authorities should normally be left to their decision, and the High Court should interfere with them only when it thinks it must do so in the interests of justice.23. Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Courts jurisdiction to issue a writ of certiorari are well recognised and it is, on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind.24.
### Response:
1
### Explanation:
one construction, and that is that the requirement of 75 per cent attendance has to be judged by reference to lectures, tutorials and/or practicals all taken together. We are unable to agree. It seems to us that in the context, it is more reasonable to hold that the said requirement must be read disjunctively; and so, it must be satisfied by the student by reference to lectures, tutorials and/or practicals as the case may be.14. Inview of this position, it seems somewhat difficult to accept the correctness of the conclusion reached by the High Court that the requirement about 75 per cent attendance must be taken collectively. It is clear that if the said requirement is read collectively, a student may be entitled to claim to have completed the regular course of study without attending any single practical or tutorial, as the case may be, if he has attended all the lectures in a given subject. Take, for instance, the case of English, History, or Political Science in the group for which the respondent was studying. It is not disputed by Mr. Basudev Prasad that in these subjects theoretically, it would be open to the student to attend the maximum number of lectures and not to do any tutorial at all. In other words, the construction placed by the High Court upon Regulation 4 leads to this unreasonable consequence that attendance at the lectures alone may, in a given case, entitled a student to appear for the examination, though he may have done no tutorial at all. In our opinion, this could not have been the intention of the regulation. It is true that the second clause of Regulation 4 requires that the percentage in question shall be calculated on the total number of lectures, tutorials and practicals delivered or provided during the session; but this provision is in the nature of a mere corollary to the main provision prescribed by Regulation 4, and, if the requirement as to 75 per cent attendance has been prescribed separately in relation to lectures, tutorials and/or practicals, the second clause in question must be read accordingly. Thus read, it only means that when the percentage is determined in reference to lectures, tutorials and practicals, what has to be taken into account is the total number of lectures delivered, or tutorials and practicals held during the session in question. We have carefully considered the reasons given by the High Court in support of its conclusion, but we are not satisfied that those reasons justify the construction which the High Court has placed on the material words used in Regulation 4.It appears that before the writ petition was filed by the respondent in the present case, his father Mr. C. K. Raman, I. C S., wrote a long letter on April 11, 1965 to appellant No. 1 inviting him to reconsider his decision in the case of his son and to allow his son to take the University examination in question. In this long communication which is argumentative, the respondents father has adopted to tone which indicates that he attempted to throw his weight about in persuading appellant No. 1 to cancel the impugned notice. Appellant No. 1 promptly replied to the said communication and informed the respondents father that he had referred the case of the respondent to the Vice-Chancellor with a statement of his attendance together with his letter for such action as he thought best under the circumstances. Appellant No. 1 added that the Vice-Chancellor had decided that it was not possible to accept the request made by the respondents father as the University regulations did not permit the same.It would be recalled that the impugned notice was published on March 29, 1965, and the letter written by the respondents father on the 11th April was replied by appellant No. 1 on the 12th April. Even so, the respondent did not file his writ petition until Sunday, the 18th April; and as we have already mentioned, the writ petition was presented at the bungalow of the Chief Justice and was heard for admission and interim orders on Sunday night. It is true that if justice demands that the Court should receive a petition even on Sunday, the Court should and ought to accept the petition; but having regard to the fact that the petitioner postponed the filling of the application until Sunday (18th April 1965) night, and other relevant circumstances to which we have already adverted, we think it would have been better if the High Court not passed an interim order on the said night as it has done. It is hardly necessary to emphasise that in dealing with matters relating to orders passed by authorities of educational institutions under Art. 226 of the Constitution, the High Court should normally be very slow to pass ex parte interim orders, because matters falling within the jurisdiction of the educational authorities should normally be left to their decision, and the High Court should interfere with them only when it thinks it must do so in the interests of justice.Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Courts jurisdiction to issue a writ of certiorari are well recognised and it is, on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind.
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INTERNET AND MOBILE ASSOCIATION OF INDIA Vs. RESERVE BANK OF INDIA | achieved through regulatory measures. Paragraph 7 of the Note- precursor to report throws light on the same and hence it is reproduced as follows: Options 7. The Committee has considered various approaches to achieve the objectives and notes: Achieving the objectives by doing nothing i. Issuing warnings may prevent unsophisticated consumers from dealing in VCs but it would not deter VC service providers or those raising funds through Initial Coin Offerings (ICOs), mis-sell or run Ponzi schemes. ii. The recourse available to customers would be inadequate. iii. Persons who provide VC services without necessary fit and proper criteria including capital and technology would continue to pose a heightened risk. Achieving the objectives through banning i. Consumer protection is a key concern but a ban might be an extreme too to address this. There are many things/activities that may be harmful but they are not all banned. Problems related to information asymmetry, concerns around market risks, law enforcement or threat to financial system cannot be adequately addressed through a ban. ii. A ban would make dealing in VCs illegal but simultaneously it might decrease the ability of the law enforcement agencies and regulators to track and stop illegal activities. iii. Ver few countries have actually banned VCs. A ban might not be in-step with Indias position as an important centre of Information Technology services. Achieving the objectives by regulating i. Penalizing entities or persons who do not opt for regulation under this Act and may choose to operate illegally may continue to be difficult. 6.168. The Crypto-token Regulation Bill, 2018 initially recommended by the Inter-Ministerial Committee contained a proposal (i) to prohibit persons dealing with activities related to crypto tokens from falsely posing these products as not being securities or investment schemes or offering investment schemes due to gaps in the existing regulatory framework and (ii) to regulate VC exchanges and brokers where sale and purchase may be permitted. 6.169. The key aspects of the Crypto-token Regulation Bill, 2018, found in paragraph 13 of the Note-precursor to report shows that the Inter-Ministerial Committee was fine with the idea of allowing the sale and purchase of digital crypto asset at recognized exchanges. Paragraph 13 (iii) & (vii) of the Note-precursor to the report reads as follows: 13. Key aspects are summarised below: (i)… (ii)… (iii) The sale and purchase of digital crypto asset shall only be permitted at recognised exchanges. (iv)… (v)… (vi)… (vii) The registry of all holdings and transactions on the recognised exchanges shall be maintained at recognised depositories. 6.170. But within a year, there was a volte-face and the final report of the very same Inter-Ministerial Committee, submitted in February 2019 recommended the imposition of a total ban on private crypto currencies through a legislation to be known as Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019. The draft of the bill contained a proposal to ban the mining, generation, holding, selling, dealing in, issuing, transferring, disposing of or using crypto currency in the territory of India. At the same time, the bill contemplated (i) the creation of a digital rupee as a legal tender, by the central government in consultation with RBI and (ii) the recognition of any official foreign digital currency, as foreign currency in India. 6.171. In case the said enactment (2019) had come through, there would have been an official digital currency, for the creation and circulation of which, RBI/central government would have had a monopoly. But that situation had not arisen. The position as on date is that VCs are not banned, but the trading in VCs and the functioning of VC exchanges are sent to comatose by the impugned Circular by disconnecting their lifeline namely, the interface with the regular banking sector. What is worse is that this has been done (i) despite RBI not finding anything wrong about the way in which these exchanges function and (ii) despite the fact that VCs are not banned. 6.172. As we have pointed out earlier, the concern of RBI is and it ought to be, about the entities regulated by it. Till date, RBI has not come out with a stand that any of the entities regulated by it namely, the nationalized banks/scheduled commercial banks/co- operative banks/NBFCs has suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them. As held by this court in State of Maharashtra v. Indian Hotel and Restaurants Association, (2013) 8 SCC 519 there must have been at least some empirical data about the degree of harm suffered by the regulated entities (after establishing that they were harmed). It is not the case of RBI that any of the entities regulated by it has suffered on account of the provision of banking services to the online platforms running VC exchanges. 6.173. It is no doubt true that RBI has very wide powers not only in view of the statutory scheme of the 3 enactments indicated earlier, but also in view of the special place and role that it has in the economy of the country. These powers can be exercised both in the form of preventive as well as curative measures. But the availability of power is different from the manner and extent to which it can be exercised. While we have recognized elsewhere in this order, the power of RBI to take a pre-emptive action, we are testing in this part of the order the proportionality of such measure, for the determination of which RBI needs to show at least some semblance of any damage suffered by its regulated entities. But there is none. When the consistent stand of RBI is that they have not banned VCs and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate. 7. CLIMAX | 1[ds]I. No Power at all for RBI (Ultra vires)The entire foundation of this contention rests on the stand taken by the petitioners that VCs are not money or other legal tender, but only goods/commodities, falling outside the purview of the RBI Act, 1934, Banking Regulation Act, 1949 and the Payment and Settlement Systems Act, 2007. In fact, the impugned Circular of RBI dated 06- 04-2018 was issued in exercise of the powers conferred upon RBI by all these three enactments. Therefore, if virtual currencies do not fall within subject matter covered by any or all of these three enactments and over which RBI has a statutory control, then the petitioners will be right in contending that the Circular is ultra vires6.3. Hence it is necessary (i) first to see the role historically assigned to a central bank such as RBI, the powers and functions conferred upon and entrusted to RBI and the statutory scheme of all the above three enactments and (ii) then to investigate what these virtual currencies really are. Therefore, we shall divide our discussion in this regard into two parts, the first concerning the role, powers and functions of RBI and the second concerning the identity of virtual currencies6.42. It is seen from the Statement of Objects and Reasons of the Bill that RBI is empowered to regulate and supervise various payment and settlement systems in India including those operated by non-banks, card companies, other payment system providers and the proposed umbrella organization for retail payments. The Act further empowers RBI to (i) lay down the procedure for authorization of payment systems (ii) lay down the operation and technical standards for payment systems (iii) issue directions and guidelines to system providers (iv) call for information and furnish returns and documents from the service providers (v) audit and inspect the systems and premises of the system providers (vi) lay down the duties of the system providers and (vii) make regulations for carrying out the provisions of the ActFixing the identity of VCs6.52. As we have stated in Part 3 of this judgment, the exact identity of virtual currencies eludes precision. Some call it an exchange of value, some call it a stock and some call it a good/commodity. There may be no difficulty in accepting the divergence of views, if those views are not driven by fear of regulation. But if someone presents it as currency to a regulator of stock market and presents it as a commodity to a regulator of money market and so on and so forth, the definition will not merely elude a proper molecular structure but also elude regulation. This is where the problem of law lies6.62. It is clear from the above that the governments and money market regulators throughout the world have come to terms with the reality that virtual currencies are capable of being used as real money, but all of them have gone into the denial mode (like the proverbial cat closing its eyes and thinking that there is complete darkness) by claiming that VCs do not have the status of a legal ender, as they are not backed by a central authority. But what an article of merchandise is capable of functioning as, is different from how it is recognized in law to be. It is as much true that VCs are not recognized as legal tender, as it is true that they are capable of performing some or most of the functions of real currency6.65. But we do not think that RBIs role and power can come into play only if something has actually acquired the status of a legal tender. We do not also think that for RBI to invoke its power, something should have all the four characteristics or functions of money. Moss v. Hancock (supra), itself a century old decision (1899), relies upon the definition of money as given by F. A. Walker in his treatise Money, Trade and Industry (actual title of the book appears to be Money in its relation to Trade and Industry), published in 1879 to the effect that money is that which passes freely from hand to hand throughout the community in final discharge of debts and full payment for commodities, being accepted equally without reference to the character or the credit of the person who offers it and without the intention of the person who receives it to consume it or apply it to any other use than in turn to tender it to others in discharge of debts or payment for commodities6.71. Just as the very concept of money or currency has changed over the years, and different jurisdictions and different statutes have adopted different definitions of money and currency, depending upon the issue sought to be addressed, the concept of VCs have also undergone a sea of change, with different regulators and statutory authorities adopting different definitions, leading to diametrically opposite views emerging from courts across the spectrum6.85. Thus (i) depending upon the text of the statute involved in the case and (ii) depending upon the context, various courts in different jurisdictions have identified virtual currencies to belong to different categories ranging from property to commodity to non-traditional currency to payment instrument to money to funds. While each of these descriptions is true, none of these constitute the whole truth. Every court which attempted to fix the identity of virtual currencies, merely acted as the 4 blind men in the Anekantavada philosophy of Jainism, (theory of non-absolutism that encourages acceptance of relativism and pluralism) who attempt to describe an elephant, but end up describing only one physical feature of the elephant6.86. RBI was also caught in this dilemma. Nothing prevented RBI from adopting a short circuit by notifying VCs under the category of other similar instruments indicated in Section 2(h) of FEMA, 1999 which defines currency to mean all currency notes, postal notes, postal orders, money orders, cheques, drafts, travelers cheque, letters of credit, bills of exchange and promissory notes, credit cards or such other similar instruments as may be notified by the Reserve Bank. After all, promissory notes, cheques, bills of exchange etc. are also not exactly currencies but operate as valid discharge (or the creation) of a debt only between 2 persons or peer-to-peer. Therefore, it is not possible to accept the contention of the petitioners that VCs are just goods/commodities and can never be regarded as real money.6.87. Once we are clear about the above confusion, and once it is accepted that some institutions accept virtual currencies as valid payments for the purchase of goods and services, there is no escape from the conclusion that the users and traders of virtual currencies carry on an activity that falls squarely within the purview of the Reserve Bank of India. The statutory obligation that RBI has, as a central bank, (i) to operate the currency and credit system, (ii) to regulate the financial system and (iii) to ensure the payment system of the country to be on track, would compel them naturally to address all issues that are perceived as potential risks to the monetary, currency, payment, credit and financial systems of the country. If an intangible property can act under certain circumstances as money (even without faking a currency) then RBI can definitely take note of it and deal with it. Hence it is not possible to accept the contention of the petitioners that they are carrying on an activity over which RBI has no power statutorily6.88. In Keshavlal Khemchand & Sons Pvt. Ltd. v. Union of India,(2015) 4 SCC 770 this court pointed out that Reserve Bank of India is an expert body to which the responsibility of monitoring the economic system of the country is entrusted, under various enactments like the RBI Act, 1934, the Banking Regulation Act, 1949. Therefore, (i) in the teeth of the statutory scheme of these enactments (ii) from the way different courts and regulators of different jurisdictions have treated VCs and (iii) from the very characteristics of VCs, it is clear that they have the potential to interfere with the matters that RBI has the power to restrict or regulate. Hence, we have no hesitation in rejecting the first contention of the petitioners that the impugned decision is ultra vires6.90. But as pointed out elsewhere, RBI is the sole repository of power for the management of the currency, under Section 3 of the RBI Act. RBI is also vested with the sole right to issue bank notes under Section 22(1) and to issue currency notes supplied to it by the Government of India and has an important role to play in evolving the monetary policy of the country, by participation in the Monetary Policy Committee which is empowered to determine the policy rate required to achieve the inflation target, in terms of the consumer price index. Therefore, anything that may pose a threat to or have an impact on the financial system of the country, can be regulated or prohibited by RBI, despite the said activity not forming part of the credit system or payment system. The expression management of the currency appearing in Section 3(1) need not necessarily be confined to the management of what is recognized in law to be currency but would also include what is capable of faking or playing the role of a currency6.91. It is ironical that virtual currencies which took avatar (according to its creator Satoshi) to kill the demon of a central authority (such as RBI), seek from the very same central authority, access to banking services so that the purpose of the avatar is accomplished. As we have pointed out elsewhere, the very creation of digital currency/ Bitcoin was to liberate the monetary system from being a slave to the central authority and from being operated in a manner prejudicial to private interests. Therefore, the ultra vires argument cannot be accepted when the provision of access to banking services without any interference from the central authority over a long period of time is perceived as a threat to the very existence of the central authority. Hence, we hold that RBI has the requisite power to regulate or prohibit an activity of this natureIf at all, the power is only to regulate, not prohibit6.92. The next contention that if at all, RBI is conferred only with the power to regulate, but not to prohibit, as seen from the express language of Section 45JA of the RBI Act, does not appeal to us6.93. The contention that the power to prohibit something as res extra commercium is always a legislative policy and that therefore the same cannot be done through an executive fiat, omits to take note of the crucial role assigned to RBI in the economic sphere. It is true that in Godawat Pan Masala Products IP Ltd. & Anr v. Union of India, (2004) 7 SCC 68 it was held that whether an article is to be prohibited as res extra commercium, is a matter of Legislative policy and must arise out of an Act of legislature and not by a mere executive notification. But we must remember that in Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 113 while dealing with prohibitions on alcohol it was held that what articles and goods should be allowed to be produced, possessed, sold and consumed is to be left to the judgment of legislative and executive wisdom6.95. The reliance placed in this regard by the petitioners on the decision of this court in State of Rajasthan v. Basant Nahata (2005) 12 SCC 77 may not be appropriate6.96. But the said decision is of no assistance to the petitioners, since none of the provisions of the RBI Act or the Banking Regulation Act are under challenge before us. The delegation itself is not in question before us. Unlike the Registration Act, Section 36(1)(a) of the Banking Regulation Act, 1949 empowers RBI to specifically target transactions. Moreover, RBIs role in the economy of the country is not akin to the power of any other delegate6.99. Law is well settled that when RBI exercises the powers conferred upon it, both to frame a policy and to issue directions for its enforcement, such directions become supplemental to the Act itself6.107. But Section 18 of the Payment and Settlement Systems Act indicates (i) what RBI can do (ii) the persons qua whom it can be done and (iii) the object for which it can be done. In other words, Section 18 empowers RBI (i) to lay down policies relating to the regulation of payment systems including electronic, non-electronic, domestic and international payment systems affecting domestic transactions and (ii) to give such directions as it may consider necessary. These are what RBI can do under Section 18. Coming to the second aspect, the persons qua whom the powers under Section 18 can be exercised are (i) system providers (ii) system participants and (iii) any other person generally or any such agency. The expression system provider is defined under Section 2(1)(q) to mean a person who operates an authorized payment system. The expression system participant is defined in Section 2(1)(p) to mean a bank or any other person participating in a payment system, including the system provider. Other than the expressions system provider and system participant, Section 18 also uses the expressions any other person and any such agency6.108. It is true that the purposes for which the power under Section 18 can be exercised, are also indicated in Section 18. They are (i) regulation of the payment systems (ii) the interest of the management and operation of any payment system and (iii) public interest6.109. As we have pointed out elsewhere, the impugned Circular is primarily addressed to banks who are system participants within the meaning of Section 2(1)(p). The banks certainly have a system of payment to be effected between a payer and a beneficiary, falling thereby within the meaning of the expression payment system6.111. Therefore, in the overall scheme of the Payment and Settlement Systems Act, 2007, it is impossible to say that RBI does not have the power to frame policies and issue directions to banks who are system participants, with respect to transactions that will fall under the category of payment obligation or payment instruction, if not a payment system. Hence, the argument revolving around Section 18 should failII. Mode of exercise of power:Satisfaction/Application of mind/relevant and irrelevant considerations6.113. But we do not think that in the facts of the present case, we could hold RBI guilty of non-application of mind. As a matter of fact, the issue as to how to deal with virtual currencies has been lingering with RBI from June 2013 onwards, when the Financial Stability Report took note of the challenges posed by virtual currencies in the form of regulatory, legal and operational risks. TheFinancial Stability Report of June 2013 led to a press release dated 24-12-2013 cautioning the users, holders and traders of virtual currencies about the potential financial, operational, legal and consumer protection and security related risks associated with virtual currencies. Then came the Financial Stability Report of December 2015 which raised concerns about excessive volatility in the value of VCs and their anonymous nature which went against global money laundering rules rendering their very existence questionable. The Financial Stability Report of December 2016 also took note of the risks associated with virtual currencies qua data security and consumer protection. The report also recorded concerns about far reaching potential impact of the effectiveness of monetary policy itself. Therefore, the report suggested RegTech to deal with FinTech6.114. IDRBT, established by RBI to work at the intersection of banking and technology submitted a white paper in January 2017, which enlisted the advantages as well as disadvantages of digital currencies. This white paper was taken note of by RBI in the Financial Stability Report of June 2017. In the meantime, RBI issued a press release on 01-02-2017 once again cautioning the users, holders and traders of virtual currencies6.115. The sub-committee of the Financial Stability and Development Council took a decision in April 2016, pursuant towhich RBI set up an Inter-Regulatory Working Group on FinTech and Digital Banking. This Working Group submitted a report in November 2017, after which RBI issued a third press release on 05-12-2017. Thereafter RBI also sent a mail on 02-04-2018 to the central government, enclosing a note on regulating crypto assets. To be fair to RBI, even this note examined the pros and cons of banning and regulating crypto currencies6.116. All the above sequence of events from June 2013 up to 02-04-2018 would show that RBI had been brooding over the issue for almost five years, without taking the extreme step. Therefore, RBI can hardly be held guilty of non-application of mind. If an issue had come up again and again before a statutory authority and such an authority had also issued warnings to those who are likely to be impacted, it can hardly be said that there was no application of mind. For arriving at a satisfaction as required by Section 35A(1) of Banking Regulation Act, 1949 and Section 45JA and 45L of RBI Act, 1934, it was not required of RBI either to write a thesis or to write a judgement6.117. In fact, RBI cannot even be accused of not taking note of relevant considerations or taking into account irrelevant considerations. RBI has taken into account only those considerations which multinational bodies and regulators of various countries such as FATF, BIS, etc., have taken into account. This can be seen evenfrom the earliest press release dated 24-12-2013, which is more elaborate than the impugned Circular dated 06-04-20186.118. When a series of steps taken by a statutory authority over a period of about five years disclose in detail what triggered their action, it is not possible to see the last of the orders in the series in isolation and conclude that the satisfaction arrived at by the authority is not reflected appropriately. In any case, pursuant to an order passed by this court on 21-08-2019, RBI has given a detailed point-wise reply to the representations of the petitioners. In these representations, the petitioners have highlighted all considerations that they thought as relevant. RBI has given its detailed responses on 04-09-2019 and 18-09-2019. Therefore, the contention that there was no application of mind and that relevant considerations were omitted to be taken note of, loses its vigour in view of the subsequent developmentsMalice in law/colorable exercise6.120. But the above argument arises out of a misconception about the purport of the impugned Circular. The impugned Circular does not order either the freezing or the closing of any particular account of a particular customer. All that the impugned Circular says is that RBI regulated entities shall exit the relationship that they have with any person or entity dealing with or settling VCs, within three months of the date of the Circular. The regulated entities are directed not to provide services for facilitating any person or entity in dealing with or settling VCs. Some of the petitioners herein are individuals and companies who run virtual currency exchanges. In case they have other businesses, the impugned Circular does not order the closure of their bank accounts relating to other businesses. The prohibition under paragraph 2 of the impugned Circular is with respect to the provision of services for facilitating any person or entity in dealing with or settling VCs. This prohibition does not extend either to the closing or the freezing of the accounts of the petitioners in relation to their other ventures6.122. But the above contention is completely misconceived. There can be no quarrel with the proposition that RBI has sufficient power to issue directions to its regulated entities in the interest of depositors, in the interest of banking policy or in the interest of the banking company or in public interest. If the exercise of power by RBI with a view to achieve one of these objectives incidentally causes a collateral damage to one of the several activities of an entity which does not come within the purview of the statutory authority, the same cannot be assailed as a colourable exercise of power or being vitiated by malice in law. To constitute colourable exercise of power, the act must have been done in bad faith and the power must have been exercised not with the object of protecting the regulated entities or the public in general, but with the object of hitting those who form the target. To constitute malice in law, the act must have been done wrongfully and willfully without reasonable or probable cause. The impugned Circular does not fall under the category of either of them6.123. The argument that the invocation by RBI, of public interest as a weapon, purportedly for the benefit of users, consumers or traders of virtual currencies is a colourable exercise of power also does not hold water. Once it is conceded that RBI has powers to issue directions in public interest, it is impossible to exclude users, consumers or traders of virtual currencies from the coverage. In fact, the repeated press releases issued by RBI from 2013 onwards6.125. But the said argument does not take the petitioners anywhere. As we have indicated elsewhere, the power under Section 35A to issue directions is to be exercised under four contingencies namely (i) public interest (ii) interest of banking policy (iii) interest of the depositors and (iv) interest of the banking company. The expression banking policy is defined in Section 5(ca) to mean any policy specified by RBI (i) in the interest of the banking system (ii) in the interest of monetary stability and (iii) sound economic growth. Public interest permeates all these three areas. This is why Section 35A(1)(a) is invoked in the impugned Circular. Therefore, we reject the argument that the impugned decision is a colorable exercise of power and it is vitiated by malice in lawM. S. Gill ReasoningIII. Wait and watch approach of the other stakeholders6.128. The argument that other stakeholders such as the Enforcement Directorate which is concerned with money laundering, the Department of Economic Affairs which is concerned with the economic policies of the State, SEBI which is concerned with security contracts and CBDT which is concerned with the tax regime relating to goods and services, did not see any grave threat and that therefore RBIs reaction is knee-jerk, is not acceptable. Enforcement Directorate can step in only when actual money laundering takes place, since the statutory scheme of Prevention of Money Laundering Act deals with a procedure which is quasi-criminal. SEBI can step in only when the transactions involve securities within the meaning of Section 2(h) of the Securities Contracts (Regulation) Act, 1956. CBDT will come into the picture only when the transaction related to the sale and purchase of taxable goods/commodities. Every one of these stakeholders has a different function to perform and are entitled to have an approach depending upon the prism through which they are obliged to look at the issue. Therefore, RBI cannot be faulted for not adopting the very same approach as that of othersIV. Light-touch approach of the other countries6.129. The argument that most of the countries except very few like China, Vietnam, Pakistan, Nepal, Bangladesh, UAE, have not imposed a ban (total or partial) may not take the petitioners anywhere. The list of countries where a ban similar to the one on hand and much more has been imposed discloses a commonality. Almost all countries in the neighborhood of India have adopted the same or similar approach (in essence India is ring fenced). In any case, our judicial decision cannot be colored by what other countries have done or not done. Comparative perspective helps only in relation to principles of judicial decision making and not for testing the validity of an action taken based on the existing statutory scheme6.130. There can also be no comparison with the approach adopted by countries such as UK, US, Japan, Singapore, Australia, New Zealand, Canada etc., as they have developed economies capable of absorbing greater shocks. Indian economic conditions cannot be placed on par. Therefore, we will not test the correctness of the measure taken by RBI on the basis of the approach adopted by other countries, though we have, for better understanding of the complexities of the issues involved, undertaken a survey of how the regulators and courts of other countries have treated VCsV. Precautionary steps taken by petitionersBut the fact of the matter is that enhanced KYC norms may remove anonymity of the customer, but not that of the VC. Even the European Parliament, in the portion of its report relied upon by Shri Ashim Sood accepts that the adequacy of mandatory registration of users (as a less invasive measure), whether or not of fully anonymous or pseudo anonymous crypto currencies depends on the users compliance with the registration requirement. After pointing out that compliance will partly depend on an adequate sanctioning toolbox in the event of breach, the report wonders whether it is at all possible outside of the context of randomly bumping into it, at least when fully anonymous VCs are concerned. In any case, we are not experts to say whether the safety valves put in place could have addressed all issues raised by RBIVI. Different types of VCs require different treatmentsAccording to the said Report, Virtual Currency schemes can be classified into three types, depending upon their interaction with traditional real money and real economy. They are (i) closed virtual currency schemes basically used in an online game (ii) virtual currency schemes having a unidirectional flow (usually an inflow), with a conversion rate for purchasing the virtual currency which can subsequently be used to buy virtual goods and services, but exceptionally also to buy real goods and services and (iii) virtual currency schemes having a bidirectional flow, where they act like any other convertible currency with two exchange rates (buy and sell) which can subsequently be used to buy virtual goods and services as well as real goods and servicesIn the very same October 2012 Report of the European Central Bank, it is accepted that virtual currencies (i) resemble money and (ii) necessarily come with their own dedicated retail payment systems. These two aspects are indicated in the Report to be covered by the term Virtual Currency Scheme6.134. But the entire premise on which the petitioners have developed their case is that they are neither money nor constitute a payment system. Therefore, if the Report of the European Central Bank is to be accepted, it should be accepted in total and cannot be selectively taken6.135. The examples provided in the October 2012 Report of the European Central Bank show that there are VC Schemes set up by entities such as Nintendo, in which consumers can purchase points online by using a credit card or in retail stores by purchasing a Nintendo points card which cannot be converted back to real money. The Report also shows that one VC by name Linden Dollars is issued in a virtual world called Second life, where users create avatars (digital characters), which can be customized. Second life has its own economy where users can buy and sell goods and services from and to each other. But they first need to purchase Linden dollars using fiat currency. Later they can also sell Linden dollars in return for fiat currency. Therefore, it is clear that the very same virtual currency can have a unidirectional or bidirectional flow depending upon the scheme with which the entities come up. Moreover, the question whether anonymous VCs alone could have been banned leaving the pseudo-anonymous, is for experts and not for this Court to decide. In any case, the stand taken by RBI is that they have not banned VCs. Hence, the question whether RBI should have adopted different approaches towards different VCs does not ariseVII. Acceptance of DLT and rejection of VCs is a paradoxThis argument is based upon the various reports, both of RBI and of the Inter-Ministerial Group, to the effect that DLT is part of FinTech6.137. The above contention, in legal terms, is about the irrationality of the impugned decision. But there is nothing irrational about the acceptance of a technological advancement/innovation, but the rejection of a by-product of such innovation. There is nothing like a take it or leave it optionVIII. RBIs decisions do not qualify for Judicial deference6.139. But given the scheme of the RBI Act, 1934 and the Banking Regulation Act, 1949, the above argument appears only to belittle the role of RBI. RBI is not just like any other statutory body created by an Act of legislature. It is a creature, created with a mandate to get liberated even from its creator. This is why it is given a mandate – (i) under the Preamble of the RBI Act 1934, to operate the currency and credit system of the country to its advantage and to operate the monetary policy framework in the country (ii) under Section 3(1), to take over the management of the currency from the central government (iii) under Section 20, to undertake to accept monies for account of the central government, to make payments up to the amount standing to the credit of its account and to carry out its exchange, remittance and other banking operations, including the management of the public debt of the Union (iv) under Section 21(1), to have all the money, remittance, exchange and banking transactions in India of the central government entrusted with it (v) under Section 22(1), to have the sole right to issue bank notes in India and (vi) under Section 38, to get rupees into circulation only through it, to the exclusion of the central government. Therefore, RBI cannot be equated to any other statutory body that merely serves its master. It is specifically empowered to do certain things to the exclusion of even the central government. Therefore, to place its decisions at a pedestal lower than that of even an executive decision, would do violence to the scheme of the Act6.140. On the primary question of switching over to judicial silent mode or hands off mode, qua economic legislation, it is not necessary to catalogue all the decisions of this court such as State of Gujarat & Anr v. Shri Ambica Mills Ltd. & Anr, (1974) 4 SCC 656 G.K.Krishnan v. Tamil Nadu,(1975) 1 SCC 375 R. K. Garg v. Union of India (supra), State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 P.M. Ashwathanarayana Setty v. State of Karnataka, (1989) Supp (1) SCC 696 Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (supra), T. Velayudhan v. Union of India,(1993) 2 SCC 582 Delhi Science Forum v. Union of India, ( Bhavesh D. Parish v. Union of India, (2000) 5 SCC 471 Ugar Sugar Works ltd. v. Delhi Administration & Ors, (2001) 3 SCC 635 BALCO Employees Union (Regd.) v. Union of India (supra), Govt. of Andhra Pradesh & Ors v. P. Laxmi Devi, (2008) 4 SCC 720 Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561 D.G. of Foreign Trade v. Kanak Exports, (2016) 2 SCC 226 State of J & K v. Trikuta Roller Flour Mills Pvt. Ltd.,(2018) 11 SCC 260 and Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 as the entire history of the doctrine of deference from Lochner Era has been summarized by this court in Swiss Ribbons Pvt. Ltd. v. Union of India (supra). In fact, even the learned Counsel for the petitioners is ad idem with the learned Senior Counsel for RBI that economic regulations require due judicial deference6.141. But as we have pointed out above, RBI is not just any other statutory authority. It is not like a stream which cannot be greater than the source. The RBI Act, 1934 is a pre-constitutional legislation, which survived the Constitution by virtue of Article 372(1) of the Constitution. The difference between other statutory creatures and RBI is that what the statutory creatures can do, could as well be done by the executive. The power conferred upon the delegate in other statutes can be tinkered with, amended or even withdrawn. But the power conferred upon RBI under Section 3(1) of the RBI Act, 1934 to take over the management of the currency from the central government, cannot be taken away. The sole right to issue bank notes in India, conferred by Section 22(1) cannot also be taken away and conferred upon any other bank or authority. RBI by virtue of its authority, is a member of the Bank of International Settlements, which position cannot be taken over by the central government and conferred upon any other authority. Therefore, to say that it is just like any other statutory authority whose decisions cannot invite due deference, is to do violence to the scheme of the Act. In fact, all countries have central banks/authorities, which, technically have independence from the government of the country. To ensure such independence, a fixed tenure is granted to the Board of Governors, so that they are not bogged down by political expediencies. In the United States of America, the Chairman of the Federal Reserve is the second most powerful person next only to the President. Though the President appoints the seven-member Board of Governors of the FederalReserve, in consultation with the Senate, each of them is appointed for a fixed tenure of fourteen years. Only one among those seven is appointed as Chairman for a period of four years. As a result of the fixed tenure of 14 years, all the members of Board of Governors survive in office more than three governments. Even the European Central Bank headquartered in Frankfurt has a President, Vice- President and four members, appointed for a period of eight years in consultation with the European Parliament. World-wide, central authorities/banks are ensured an independence, but unfortunately Section 8(4) of the RBI Act, 1934 gives a tenure not exceeding five years, as the central government may fix at the time of appointment. Though the shorter tenure and the choice given to the central government to fix the tenure, to some extent, undermines the ability of the incumbents of office to be absolutely independent, the statutory scheme nevertheless provides for independence to the institution as such. Therefore, we do not accept the argument that a policy decision taken by RBI does not warrant any deferenceIX. Article 19(1)(g) challenge & Proportionality6.143. The parameters laid down in Md. Faruk are unimpeachable. While testing the validity of a law imposing a restriction on the carrying on of a business or a profession, the court must, as formulated in Md. Faruk, attempt an evaluation of (i) its direct and immediate impact upon of the fundamental rights of the citizens affected thereby (ii) the larger public interest sought to be ensured in the light of the object sought to be achieved (iii) the necessity to restrict the citizens freedom (iv) the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public and (v) the possibility of achieving the same object by imposing a less drastic restraint6.144. There can also be no quarrel with the proposition that banking channels provide the lifeline of any business, trade or profession. This is especially so in the light of the restrictions on cash transactions contained in Sections 269SS and 269T of the Income Tax Act, 1961. When currency itself has undergone a metamorphosis over the centuries, from stone to metal to paper to paperless and we have ushered into the digital age, cashless transactions (not penniless transactions) require banking channels. Therefore, the moment a person is deprived of the facility of operating a bank account, the lifeline of his trade or business is severed, resulting in the trade or business getting automatically shut down. Hence, the burden of showing that larger public interest warranted such a serious restriction bordering on prohibition, is heavily on RBIThis objection may hold good in respect of the writ petition filed by Internet and Mobile Association of India, which is described by them as a not-for-profit association of corporate entities who are in the trade. But this objection may not hold good in respect of the other writ petition, as the companies running VC exchanges have not come up alone. The shareholders and promoters have come up with the second writ petition along with those entities and hence the challenge under Article 19(1)(g) cannot be said to be not maintainable6.150. An important aspect to be taken note of is that virtual currencies cannot be stored anywhere, in the real sense of the term, as they do not exist in any physical shape or form. What is actually stored is the private keys, which can be used to access the public address and transaction signatures.6.151. The software program in which the private and public keys of those who own virtual currencies is stored, is called a digital wallet. There are different types of wallets namely (i) paper wallet which is essentially a document that contains a public address for receiving the currency and a private key which allows the owner to spend or transfer the virtual currencies stored in the address (ii) mobile wallet, which is a tool which runs as an app on the smartphone, where the private keys are stored, enabling the owner to make payments in crypto currencies directly from the phone (iii) web wallet, in which the private keys are stored on a server which is constantly online (iv) desktop wallet, in which private keys are stored in the hard drive and (v) hardware wallet, where the private keys are stored in a hardware device such as pen drive6.152. All the above types of wallets except the desktop wallet allow a great degree of flexibility, in that they can be accessed from anywhere in the world. For instance, paper wallets are printed in the form of QR codes that can be scanned, and a transaction completed by using the private keys. Similarly, mobile wallets run as an app on the smartphone and hence they allow a person to use the crypto currency stored in the wallet for buying anything, even while travelling abroad, provided the vendor accepts payments in crypto currencies. Paper wallets and mobile wallets can also be used to draw fiat currency from virtual currency ATMs available in countries like USA, Canada, Switzerland, etc6.153. In other words, most of the wallets except perhaps desktop wallet, have great mobility and have transcended borders. Therefore, despite the fact that the users and traders of virtual currencies are also prevented by the impugned Circular from accessing the banking services, the impugned Circular has not paralyzed many of the other ways in which crypto currencies can still find their way to or through the market6.154. Persons who have suffered a deadly blow from the impugned Circular are only those running VC exchanges and not even those who are trading in VCs. Persons trading in VCs, even now have different options, some of which we have discussed above (wizards may have many more options). But the VC exchanges do not appear to have found out any other means of survival (at least as of now) if they are disconnected from the banking channels6.155. In all cases where legislative/executive action infringing the right guaranteed under Article 19(1)(g) were set at naught by this court, this court was concerned with a ban/prohibition of an activity. The question of the prohibited/banned activities having the potential to destabilize an existing system, did not arise in those cases. The pleadings contained in the first writ petition filed by the Association, would show that three companies who are members of the Internet and Mobile Association of India, had a combined total of approximately 17 lakhs verified users throughout India. These companies held a combined total of approximately Rs. 1365 crores of user funds in trust. The approximate monthly transaction volume of just these three companies was around Rs. 5000 crores. Even according to the petitioner, the crypto asset industry is estimated to have a market capitalization of approximately 430 billion US dollars globally. India is estimated to contribute between 2 and 10% based on varied estimates. It is admitted in WP (C) No. 373 of 2018 that the total number of investors in Indian crypto market was approximately 20 lakhs and the average daily trade volume was at least Rs. 150 crores, at the time when the writ petition was filed. Therefore, if a central authority like RBI, on a conspectus of various factors perceive the trend as the growth of a parallel economy and severs the umbilical cord that virtual currency has with fiat currency, the same cannot be very lightly nullified as offending Article 19(1)(g)6.156. But nevertheless, the measure taken by RBI should pass the test of proportionality, since the impugned Circular has almost wiped the VC exchanges out of the industrial map of the country, thereby infringing Article 19(1)(g)6.166. Though at the time when the impugned Circular was issued, RBI has not obviously addressed many of the issues flagged by the writ petitioners, RBI did in fact consider the issues raised by the petitioners, pursuant to the order passed by this court on 21-08-2019. RBI has also analyzed in Annexure B to the reply dated 18-09- 2019 extracted above, the additional safeguards suggested by the petitioners, to see if the purpose of the impugned measure can be achieved through less intrusive measures. While exercising the power of judicial review we may not scan the response of RBI in greater detail to find out if the response to the additional safeguards suggested by the petitioners was just imaginary6.167. But at the same time we cannot lose sight of three important aspects namely, (i) that RBI has not so far found, in the past 5 years or more, the activities of VC exchanges to have actually impacted adversely, the way the entities regulated by RBI function (ii) that the consistent stand taken by RBI up to and including in their reply dated 04-09-2019 is that RBI has not prohibited VCs in the country and (iii) that even the Inter-Ministerial Committee constituted on 02-11-2017, which initially recommended a specific legal framework including the introduction of a new law namely, Crypto-token Regulation Bill 2018, was of the opinion that a ban might be an extreme tool and that the same objectives can be achieved through regulatory measures6.170. But within a year, there was a volte-face and the final report of the very same Inter-Ministerial Committee, submitted in February 2019 recommended the imposition of a total ban on private crypto currencies through a legislation to be known as Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019. The draft of the bill contained a proposal to ban the mining, generation, holding, selling, dealing in, issuing, transferring, disposing of or using crypto currency in the territory of India. At the same time, the bill contemplated (i) the creation of a digital rupee as a legal tender, by the central government in consultation with RBI and (ii) the recognition of any official foreign digital currency, as foreign currency in India6.171. In case the said enactment (2019) had come through, there would have been an official digital currency, for the creation and circulation of which, RBI/central government would have had a monopoly. But that situation had not arisen. The position as on date is that VCs are not banned, but the trading in VCs and the functioning of VC exchanges are sent to comatose by the impugned Circular by disconnecting their lifeline namely, the interface with the regular banking sector. What is worse is that this has been done (i) despite RBI not finding anything wrong about the way in which these exchanges function and (ii) despite the fact that VCs are not banned6.172. As we have pointed out earlier, the concern of RBI is and it ought to be, about the entities regulated by it. Till date, RBI has not come out with a stand that any of the entities regulated by it namely, the nationalized banks/scheduled commercial banks/co- operative banks/NBFCs has suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them. As held by this court in State of Maharashtra v. Indian Hotel and Restaurants Association, (2013) 8 SCC 519 there must have been at least some empirical data about the degree of harm suffered by the regulated entities (after establishing that they were harmed). It is not the case of RBI that any of the entities regulated by it has suffered on account of the provision of banking services to the online platforms running VC exchanges6.173. It is no doubt true that RBI has very wide powers not only in view of the statutory scheme of the 3 enactments indicated earlier, but also in view of the special place and role that it has in the economy of the country. These powers can be exercised both in the form of preventive as well as curative measures. But the availability of power is different from the manner and extent to which it can be exercised. While we have recognized elsewhere in this order, the power of RBI to take a pre-emptive action, we are testing in this part of the order the proportionality of such measure, for the determination of which RBI needs to show at least some semblance of any damage suffered by its regulated entities. But there is none. When the consistent stand of RBI is that they have not banned VCs and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate. | 1 | 44,000 | 8,629 | ### Instruction:
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achieved through regulatory measures. Paragraph 7 of the Note- precursor to report throws light on the same and hence it is reproduced as follows: Options 7. The Committee has considered various approaches to achieve the objectives and notes: Achieving the objectives by doing nothing i. Issuing warnings may prevent unsophisticated consumers from dealing in VCs but it would not deter VC service providers or those raising funds through Initial Coin Offerings (ICOs), mis-sell or run Ponzi schemes. ii. The recourse available to customers would be inadequate. iii. Persons who provide VC services without necessary fit and proper criteria including capital and technology would continue to pose a heightened risk. Achieving the objectives through banning i. Consumer protection is a key concern but a ban might be an extreme too to address this. There are many things/activities that may be harmful but they are not all banned. Problems related to information asymmetry, concerns around market risks, law enforcement or threat to financial system cannot be adequately addressed through a ban. ii. A ban would make dealing in VCs illegal but simultaneously it might decrease the ability of the law enforcement agencies and regulators to track and stop illegal activities. iii. Ver few countries have actually banned VCs. A ban might not be in-step with Indias position as an important centre of Information Technology services. Achieving the objectives by regulating i. Penalizing entities or persons who do not opt for regulation under this Act and may choose to operate illegally may continue to be difficult. 6.168. The Crypto-token Regulation Bill, 2018 initially recommended by the Inter-Ministerial Committee contained a proposal (i) to prohibit persons dealing with activities related to crypto tokens from falsely posing these products as not being securities or investment schemes or offering investment schemes due to gaps in the existing regulatory framework and (ii) to regulate VC exchanges and brokers where sale and purchase may be permitted. 6.169. The key aspects of the Crypto-token Regulation Bill, 2018, found in paragraph 13 of the Note-precursor to report shows that the Inter-Ministerial Committee was fine with the idea of allowing the sale and purchase of digital crypto asset at recognized exchanges. Paragraph 13 (iii) & (vii) of the Note-precursor to the report reads as follows: 13. Key aspects are summarised below: (i)… (ii)… (iii) The sale and purchase of digital crypto asset shall only be permitted at recognised exchanges. (iv)… (v)… (vi)… (vii) The registry of all holdings and transactions on the recognised exchanges shall be maintained at recognised depositories. 6.170. But within a year, there was a volte-face and the final report of the very same Inter-Ministerial Committee, submitted in February 2019 recommended the imposition of a total ban on private crypto currencies through a legislation to be known as Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019. The draft of the bill contained a proposal to ban the mining, generation, holding, selling, dealing in, issuing, transferring, disposing of or using crypto currency in the territory of India. At the same time, the bill contemplated (i) the creation of a digital rupee as a legal tender, by the central government in consultation with RBI and (ii) the recognition of any official foreign digital currency, as foreign currency in India. 6.171. In case the said enactment (2019) had come through, there would have been an official digital currency, for the creation and circulation of which, RBI/central government would have had a monopoly. But that situation had not arisen. The position as on date is that VCs are not banned, but the trading in VCs and the functioning of VC exchanges are sent to comatose by the impugned Circular by disconnecting their lifeline namely, the interface with the regular banking sector. What is worse is that this has been done (i) despite RBI not finding anything wrong about the way in which these exchanges function and (ii) despite the fact that VCs are not banned. 6.172. As we have pointed out earlier, the concern of RBI is and it ought to be, about the entities regulated by it. Till date, RBI has not come out with a stand that any of the entities regulated by it namely, the nationalized banks/scheduled commercial banks/co- operative banks/NBFCs has suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them. As held by this court in State of Maharashtra v. Indian Hotel and Restaurants Association, (2013) 8 SCC 519 there must have been at least some empirical data about the degree of harm suffered by the regulated entities (after establishing that they were harmed). It is not the case of RBI that any of the entities regulated by it has suffered on account of the provision of banking services to the online platforms running VC exchanges. 6.173. It is no doubt true that RBI has very wide powers not only in view of the statutory scheme of the 3 enactments indicated earlier, but also in view of the special place and role that it has in the economy of the country. These powers can be exercised both in the form of preventive as well as curative measures. But the availability of power is different from the manner and extent to which it can be exercised. While we have recognized elsewhere in this order, the power of RBI to take a pre-emptive action, we are testing in this part of the order the proportionality of such measure, for the determination of which RBI needs to show at least some semblance of any damage suffered by its regulated entities. But there is none. When the consistent stand of RBI is that they have not banned VCs and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate. 7. CLIMAX
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funds in trust. The approximate monthly transaction volume of just these three companies was around Rs. 5000 crores. Even according to the petitioner, the crypto asset industry is estimated to have a market capitalization of approximately 430 billion US dollars globally. India is estimated to contribute between 2 and 10% based on varied estimates. It is admitted in WP (C) No. 373 of 2018 that the total number of investors in Indian crypto market was approximately 20 lakhs and the average daily trade volume was at least Rs. 150 crores, at the time when the writ petition was filed. Therefore, if a central authority like RBI, on a conspectus of various factors perceive the trend as the growth of a parallel economy and severs the umbilical cord that virtual currency has with fiat currency, the same cannot be very lightly nullified as offending Article 19(1)(g)6.156. But nevertheless, the measure taken by RBI should pass the test of proportionality, since the impugned Circular has almost wiped the VC exchanges out of the industrial map of the country, thereby infringing Article 19(1)(g)6.166. Though at the time when the impugned Circular was issued, RBI has not obviously addressed many of the issues flagged by the writ petitioners, RBI did in fact consider the issues raised by the petitioners, pursuant to the order passed by this court on 21-08-2019. RBI has also analyzed in Annexure B to the reply dated 18-09- 2019 extracted above, the additional safeguards suggested by the petitioners, to see if the purpose of the impugned measure can be achieved through less intrusive measures. While exercising the power of judicial review we may not scan the response of RBI in greater detail to find out if the response to the additional safeguards suggested by the petitioners was just imaginary6.167. But at the same time we cannot lose sight of three important aspects namely, (i) that RBI has not so far found, in the past 5 years or more, the activities of VC exchanges to have actually impacted adversely, the way the entities regulated by RBI function (ii) that the consistent stand taken by RBI up to and including in their reply dated 04-09-2019 is that RBI has not prohibited VCs in the country and (iii) that even the Inter-Ministerial Committee constituted on 02-11-2017, which initially recommended a specific legal framework including the introduction of a new law namely, Crypto-token Regulation Bill 2018, was of the opinion that a ban might be an extreme tool and that the same objectives can be achieved through regulatory measures6.170. But within a year, there was a volte-face and the final report of the very same Inter-Ministerial Committee, submitted in February 2019 recommended the imposition of a total ban on private crypto currencies through a legislation to be known as Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019. The draft of the bill contained a proposal to ban the mining, generation, holding, selling, dealing in, issuing, transferring, disposing of or using crypto currency in the territory of India. At the same time, the bill contemplated (i) the creation of a digital rupee as a legal tender, by the central government in consultation with RBI and (ii) the recognition of any official foreign digital currency, as foreign currency in India6.171. In case the said enactment (2019) had come through, there would have been an official digital currency, for the creation and circulation of which, RBI/central government would have had a monopoly. But that situation had not arisen. The position as on date is that VCs are not banned, but the trading in VCs and the functioning of VC exchanges are sent to comatose by the impugned Circular by disconnecting their lifeline namely, the interface with the regular banking sector. What is worse is that this has been done (i) despite RBI not finding anything wrong about the way in which these exchanges function and (ii) despite the fact that VCs are not banned6.172. As we have pointed out earlier, the concern of RBI is and it ought to be, about the entities regulated by it. Till date, RBI has not come out with a stand that any of the entities regulated by it namely, the nationalized banks/scheduled commercial banks/co- operative banks/NBFCs has suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them. As held by this court in State of Maharashtra v. Indian Hotel and Restaurants Association, (2013) 8 SCC 519 there must have been at least some empirical data about the degree of harm suffered by the regulated entities (after establishing that they were harmed). It is not the case of RBI that any of the entities regulated by it has suffered on account of the provision of banking services to the online platforms running VC exchanges6.173. It is no doubt true that RBI has very wide powers not only in view of the statutory scheme of the 3 enactments indicated earlier, but also in view of the special place and role that it has in the economy of the country. These powers can be exercised both in the form of preventive as well as curative measures. But the availability of power is different from the manner and extent to which it can be exercised. While we have recognized elsewhere in this order, the power of RBI to take a pre-emptive action, we are testing in this part of the order the proportionality of such measure, for the determination of which RBI needs to show at least some semblance of any damage suffered by its regulated entities. But there is none. When the consistent stand of RBI is that they have not banned VCs and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate.
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Commissioner of Income Tax, Gujarat Vs. M/s. Bhanji Lavji Porbandar | done was done at Porbandar"- that the question of receipt of sale proceeds in British India was "thus bypassed"; that the Income-tax Officer was informed about the interest paid to the assessee but "no question was raised of any possible liability of the assessee to tax on other account"; that "all the statements taken together contained such a meagre presentation of the facts, that it was difficult to consider that there was a full and true disclosure of material facts"; and that "the material facts were not disclosed, whatever was disclosed was not fully disclosed, and in that sense there was no true disclosure",. The Tribunal then observed:This is not a case where the Income-tax Officer drew a wrong legal inference from facts. This is a case where facts must be regarded as not fully or truly disclosed. xxx Even so, in this case, it is mainly the assessee who failed to carry out the obligation under the law, with the result that the income escaped assessment. The words "full" and "true" and "material facts" and the Explanation to S. 34 (l) (a) would lose all their meaning it the meagre statements by the assessee were to pass muster. Under those circumstances, we must hold that the initiation of action under S. 34 (l) (a) was valid ".6. In our judgment, the High Court was right in holding that the Tribunal misconceived the nature of the proceedings and the duty imposed upon the assessee by S. 34 (l) (a).It is not for the assessee to satisfy the Income-tax Officer that there was no concealment with regard to any question; it is for the Income-tax Officer, if that issue is raised, to establish that the assessee had failed to disclose fully and truly certain facts material to the assessment of income which had escaped assessment.Failure to disclose how the delivery of ghee was given at Porbandar was wholly irrelevant, and failure to furnish particulars in that behalf cannot assist the case of the Department. Observation relating to the failure to disclose the price of ghee supplied is not strictly accurate, for, it was disclosed by the assessees representative that the cheques were delivered for payment of the dues for ghee supplied at Porbandar and that "they were subsequently transferred to Porbandar". It was again no duty of the assessee to disclose to or instruct the Income-tax Officer thatthere were "profits embedded in the receipt" of the money at Bombay. Section 34 (l) (a) does not cast any duty upon the assessee to instruct the Income-tax Officer on questions of law. The assessee had disclosed that ghee was delivered at Porbandar by him and the price in respect of those supplied was received in Bombay which was subsequently transferred to PorbandarWe are unable to accept the view of the Tribunal that the "question of receipt of sale proceeds m British India was thus by-passed". The assessees representative had expressly stated that the assessee had maintained a Bank account in British India in which "for recovering from merchants dues in respect of the goods delivered at Porbandar" were credited. The assessee also produced the Bank Pass Books. The finding that "the question of receipt of sale proceeds was by-passed" cannot be accepted as correct. The statement that the cheques were "subsequently transferred to Porbandar" only means that the amounts realized by encashment of the cheques were sent to Porbandar, and not thatthe cheques were sent to Porbandar. We do not think that any more detailed disclosure was necessary to comply with the requirements that the assessee had fully and truly disclosed all the material facts necessary for the purpose of assessment.7. The Income-tax Officer may, if he is satisfied, that on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, income has escaped assessment, he may assess or re-assess the income. But when the primary facts necessary for assessment are fully and truly disclosed, he is not entitled on change of opinion to commence proceedings for re-assessment. The Income-tax Officer was apprised of all the primary facts necessary for assessment, and he proceeded to "drop the assessment proceedings". He may have raised a wrong legal inference from the facts, disclosed but on that account he was not competent to commence re-assessment proceedings under Section 34 (1) (a) for the two assessment years 1947-48 and 1948-49.8. Counsel for the Commissioner contended that in any event the assessee had in the assessment of income for the year 1949-50 not disclosed all the primary facts. Counsel contended that the statement before the Income-tax Officer was a bare statement about the receipt of interest from Messrs. Shamji Kalidas and Company and there was no reference to the account with the Bank of India Ltd. There is no substance in this contention. The assessee had invited the attention of the Income-tax Officer to the previous assessment proceedings and also had invited his attention to the fact that on the interest received tax at maximum rate was charged. In the Bank account there was no express reference. But we agree with the High Court that since the factual position having remained unaltered in the assessment year 1949-50 there was no non-disclosure of material facts necessary for assessment of the income. The income-tax Officer was fully aware of the assessment proceedings for the years 1947-48 and 1948-49, and in his order he expressly referred to those proceedings. Being aware of the earlier proceedings and the reasons for passing the previous order, if the Income-tax Officer passed an order in effect holding that there was no income of the assessee chargeable to tax, the Income-tax Officer cannot seek to reassess the income on the ground of failure to disclose fully and truly the facts necessary for assessment. We do not think that any ground is made out for disagreeing with the High Court in respect of the validity of the order of re-assessment for the Year 1949-50. | 0[ds]6. In our judgment, the High Court was right in holding that the Tribunal misconceived the nature of the proceedings and the duty imposed upon the assessee by S. 34 (l) (a).It is not for the assessee to satisfy theOfficer that there was no concealment with regard to any question; it is for theOfficer, if that issue is raised, to establish that the assessee had failed to disclose fully and truly certain facts material to the assessment of income which had escaped assessment.Failure to disclose how the delivery of ghee was given at Porbandar was wholly irrelevant, and failure to furnish particulars in that behalf cannot assist the case of the Department. Observation relating to the failure to disclose the price of ghee supplied is not strictly accurate, for, it was disclosed by the assessees representative that the cheques were delivered for payment of the dues for ghee supplied at Porbandar and that "they were subsequently transferred to Porbandar". It was again no duty of the assessee to disclose to or instruct theOfficer thatthere were "profits embedded in the receipt" of the money at Bombay. Section 34 (l) (a) does not cast any duty upon the assessee to instruct theOfficer on questions of law. The assessee had disclosed that ghee was delivered at Porbandar by him and the price in respect of those supplied was received in Bombay which was subsequently transferred to PorbandarWe are unable to accept the view of the Tribunal that the "question of receipt of sale proceeds m British India was thusThe assessees representative had expressly stated that the assessee had maintained a Bank account in British India in which "for recovering from merchants dues in respect of the goods delivered at Porbandar" were credited. The assessee also produced the Bank Pass Books. The finding that "the question of receipt of sale proceeds wascannot be accepted as correct. The statement that the cheques were "subsequently transferred to Porbandar" only means that the amounts realized by encashment of the cheques were sent to Porbandar, and not thatthe cheques were sent to Porbandar. We do not think that any more detailed disclosure was necessary to comply with the requirements that the assessee had fully and truly disclosed all the material facts necessary for the purpose of assessment.7. TheOfficer may, if he is satisfied, that on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, income has escaped assessment, he may assess orthe income. But when the primary facts necessary for assessment are fully and truly disclosed, he is not entitled on change of opinion to commence proceedings forax Officer was apprised of all the primary facts necessary for assessment, and he proceeded to "drop the assessment proceedings". He may have raised a wrong legal inference from the facts, disclosed but on that account he was not competent to commenceproceedings under Section 34 (1) (a) for the two assessment yearsre is no substance in this contention. The assessee had invited the attention of theOfficer to the previous assessment proceedings and also had invited his attention to the fact that on the interest received tax at maximum rate was charged. In the Bank account there was no express reference. But we agree with the High Court that since the factual position having remained unaltered in the assessment yearthere was noof material facts necessary for assessment of the income. TheOfficer was fully aware of the assessment proceedings for the years9, and in his order he expressly referred to those proceedings. Being aware of the earlier proceedings and the reasons for passing the previous order, if theOfficer passed an order in effect holding thatthere was noincome of the assessee chargeable to tax, theOfficer cannot seek to reassess the income on the ground of failure to disclose fully and truly the facts necessary for assessment. We do not think that any ground is made out for disagreeing with the High Court in respect of the validity of the order offor the Year | 0 | 2,640 | 740 | ### 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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done was done at Porbandar"- that the question of receipt of sale proceeds in British India was "thus bypassed"; that the Income-tax Officer was informed about the interest paid to the assessee but "no question was raised of any possible liability of the assessee to tax on other account"; that "all the statements taken together contained such a meagre presentation of the facts, that it was difficult to consider that there was a full and true disclosure of material facts"; and that "the material facts were not disclosed, whatever was disclosed was not fully disclosed, and in that sense there was no true disclosure",. The Tribunal then observed:This is not a case where the Income-tax Officer drew a wrong legal inference from facts. This is a case where facts must be regarded as not fully or truly disclosed. xxx Even so, in this case, it is mainly the assessee who failed to carry out the obligation under the law, with the result that the income escaped assessment. The words "full" and "true" and "material facts" and the Explanation to S. 34 (l) (a) would lose all their meaning it the meagre statements by the assessee were to pass muster. Under those circumstances, we must hold that the initiation of action under S. 34 (l) (a) was valid ".6. In our judgment, the High Court was right in holding that the Tribunal misconceived the nature of the proceedings and the duty imposed upon the assessee by S. 34 (l) (a).It is not for the assessee to satisfy the Income-tax Officer that there was no concealment with regard to any question; it is for the Income-tax Officer, if that issue is raised, to establish that the assessee had failed to disclose fully and truly certain facts material to the assessment of income which had escaped assessment.Failure to disclose how the delivery of ghee was given at Porbandar was wholly irrelevant, and failure to furnish particulars in that behalf cannot assist the case of the Department. Observation relating to the failure to disclose the price of ghee supplied is not strictly accurate, for, it was disclosed by the assessees representative that the cheques were delivered for payment of the dues for ghee supplied at Porbandar and that "they were subsequently transferred to Porbandar". It was again no duty of the assessee to disclose to or instruct the Income-tax Officer thatthere were "profits embedded in the receipt" of the money at Bombay. Section 34 (l) (a) does not cast any duty upon the assessee to instruct the Income-tax Officer on questions of law. The assessee had disclosed that ghee was delivered at Porbandar by him and the price in respect of those supplied was received in Bombay which was subsequently transferred to PorbandarWe are unable to accept the view of the Tribunal that the "question of receipt of sale proceeds m British India was thus by-passed". The assessees representative had expressly stated that the assessee had maintained a Bank account in British India in which "for recovering from merchants dues in respect of the goods delivered at Porbandar" were credited. The assessee also produced the Bank Pass Books. The finding that "the question of receipt of sale proceeds was by-passed" cannot be accepted as correct. The statement that the cheques were "subsequently transferred to Porbandar" only means that the amounts realized by encashment of the cheques were sent to Porbandar, and not thatthe cheques were sent to Porbandar. We do not think that any more detailed disclosure was necessary to comply with the requirements that the assessee had fully and truly disclosed all the material facts necessary for the purpose of assessment.7. The Income-tax Officer may, if he is satisfied, that on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, income has escaped assessment, he may assess or re-assess the income. But when the primary facts necessary for assessment are fully and truly disclosed, he is not entitled on change of opinion to commence proceedings for re-assessment. The Income-tax Officer was apprised of all the primary facts necessary for assessment, and he proceeded to "drop the assessment proceedings". He may have raised a wrong legal inference from the facts, disclosed but on that account he was not competent to commence re-assessment proceedings under Section 34 (1) (a) for the two assessment years 1947-48 and 1948-49.8. Counsel for the Commissioner contended that in any event the assessee had in the assessment of income for the year 1949-50 not disclosed all the primary facts. Counsel contended that the statement before the Income-tax Officer was a bare statement about the receipt of interest from Messrs. Shamji Kalidas and Company and there was no reference to the account with the Bank of India Ltd. There is no substance in this contention. The assessee had invited the attention of the Income-tax Officer to the previous assessment proceedings and also had invited his attention to the fact that on the interest received tax at maximum rate was charged. In the Bank account there was no express reference. But we agree with the High Court that since the factual position having remained unaltered in the assessment year 1949-50 there was no non-disclosure of material facts necessary for assessment of the income. The income-tax Officer was fully aware of the assessment proceedings for the years 1947-48 and 1948-49, and in his order he expressly referred to those proceedings. Being aware of the earlier proceedings and the reasons for passing the previous order, if the Income-tax Officer passed an order in effect holding that there was no income of the assessee chargeable to tax, the Income-tax Officer cannot seek to reassess the income on the ground of failure to disclose fully and truly the facts necessary for assessment. We do not think that any ground is made out for disagreeing with the High Court in respect of the validity of the order of re-assessment for the Year 1949-50.
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6. In our judgment, the High Court was right in holding that the Tribunal misconceived the nature of the proceedings and the duty imposed upon the assessee by S. 34 (l) (a).It is not for the assessee to satisfy theOfficer that there was no concealment with regard to any question; it is for theOfficer, if that issue is raised, to establish that the assessee had failed to disclose fully and truly certain facts material to the assessment of income which had escaped assessment.Failure to disclose how the delivery of ghee was given at Porbandar was wholly irrelevant, and failure to furnish particulars in that behalf cannot assist the case of the Department. Observation relating to the failure to disclose the price of ghee supplied is not strictly accurate, for, it was disclosed by the assessees representative that the cheques were delivered for payment of the dues for ghee supplied at Porbandar and that "they were subsequently transferred to Porbandar". It was again no duty of the assessee to disclose to or instruct theOfficer thatthere were "profits embedded in the receipt" of the money at Bombay. Section 34 (l) (a) does not cast any duty upon the assessee to instruct theOfficer on questions of law. The assessee had disclosed that ghee was delivered at Porbandar by him and the price in respect of those supplied was received in Bombay which was subsequently transferred to PorbandarWe are unable to accept the view of the Tribunal that the "question of receipt of sale proceeds m British India was thusThe assessees representative had expressly stated that the assessee had maintained a Bank account in British India in which "for recovering from merchants dues in respect of the goods delivered at Porbandar" were credited. The assessee also produced the Bank Pass Books. The finding that "the question of receipt of sale proceeds wascannot be accepted as correct. The statement that the cheques were "subsequently transferred to Porbandar" only means that the amounts realized by encashment of the cheques were sent to Porbandar, and not thatthe cheques were sent to Porbandar. We do not think that any more detailed disclosure was necessary to comply with the requirements that the assessee had fully and truly disclosed all the material facts necessary for the purpose of assessment.7. TheOfficer may, if he is satisfied, that on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, income has escaped assessment, he may assess orthe income. But when the primary facts necessary for assessment are fully and truly disclosed, he is not entitled on change of opinion to commence proceedings forax Officer was apprised of all the primary facts necessary for assessment, and he proceeded to "drop the assessment proceedings". He may have raised a wrong legal inference from the facts, disclosed but on that account he was not competent to commenceproceedings under Section 34 (1) (a) for the two assessment yearsre is no substance in this contention. The assessee had invited the attention of theOfficer to the previous assessment proceedings and also had invited his attention to the fact that on the interest received tax at maximum rate was charged. In the Bank account there was no express reference. But we agree with the High Court that since the factual position having remained unaltered in the assessment yearthere was noof material facts necessary for assessment of the income. TheOfficer was fully aware of the assessment proceedings for the years9, and in his order he expressly referred to those proceedings. Being aware of the earlier proceedings and the reasons for passing the previous order, if theOfficer passed an order in effect holding thatthere was noincome of the assessee chargeable to tax, theOfficer cannot seek to reassess the income on the ground of failure to disclose fully and truly the facts necessary for assessment. We do not think that any ground is made out for disagreeing with the High Court in respect of the validity of the order offor the Year
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P. SURENDRAN Vs. STATE BY INSPECTOR OF POLICE | order and judgment dated 02.01.2019, in Crl.M.P. No. 5697 of 2018 passed by the Learned Court of. The Principle Sessions Judge of Kancheepuram District at Chengalpattu, Tamil Nadu and the order of the High Court Registry, in not numbering the anticipatory bail petition of the petitioner-accused herein. 2. We need to refer to the basic facts necessary for the disposal of the case at hand. An FIR was filed against the three co-accused (Murugesan, S. M. Ekambaram and Ramaswamy), before the PS Pallikaranai, St. Thomas Mount, Kancheepuram District, Tamil Nadu, being Crime No. 937 of 2017, dated 03.04.2017, under Section 147, 148, 448, 302 and 506 of IPC. It is averred that subsequently Offence under Section 3(ii) of the Scheduled castes and the Scheduled Tribes (prevention of atrocities) Act, 1989 [‘SC/ST Act?] was also added. Further it is to be noted that the Petitioner herein was later arrayed as an accused by the police. In view of apprehension of arrest, the petitioner filed an Anticipatory Bail Application being Crl.M.P. No. 5697 of 2018, before the Learned Court of The Principal Sessions Judge of Kancheepuram at Chengalpattu. 3. The District Principal Judge by an Order dated 02.01.2019, dismissed the anticipatory bail application of the petitioner. Aggrieved by the same, petitioner approached the High Court of Madras seeking anticipatory bail, but the Registry of the High Court refused to number and list the matter before the court on the following office objection-?It may be stated how this petition for Anticipatory Bail is maintainable, since the offence is under SC/ST Act?Even though the petitioner herein replied to the aforesaid office objection, the High Court Registry rejected numbering of the petition and dismissed the Anticipatory Bail Petition on the issue of maintainability under SC/ST Act. 4. Aggrieved by such non-registration, the petitioner is before this Court on a question of law as to whether the Madras High Court Registry was wrong, in not numbering the Anticipatory-Bail Petition and as to whether consequent dismissal of the same on the issue of maintainability of the petition impinges on the judicial function of the High Court? 5. In view of the importance of the matter, this Court had requested the assistance of the Attorney General for India who acceded our request and assisted this Court. 6. Learned Attorney General has stated that the stance of the Registry of the Madras High Court in refusing to number the anticipatory bail application and not placing it before the appropriate bench is incorrect. He states that in light of the subsequent amendment of 2018 to the SC/ST Act, particularly the inclusion of Section 18A under the SC/ST Act, appropriate bench has to adjudicate the matter as the same is a judicial function. Therefore, the registry of the Madras High Court cannot refuse to number the anticipatory bail application on the ground of maintainability. 7. Recently, the Government amended the SC/ST Act, through The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 No. 27 of 2018, wherein a new provision being Section 18-A was inserted, which reads as under-"18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.". (emphasis added)8. We may note that the aforesaid amendment has been constitutionally challenged in various writ petitions listed before a different bench of this Court along with the R.P. (Crl.) No. 228 of 2018, titled Union of India v. State of Maharashtra and Others. However, the question before this Court herein is different, distinct and limited. We are only concerned with the question whether Registry could have questioned the maintainability of the Petition. 9. The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. A Constitution Bench of five judges in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677 , formulated the following criteria to ascertain whether a decision or an act is judicial function or not, in the following manner-(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule; (2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact. (emphasis added)The act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering. | 0[ds]9. The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice.act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering. | 0 | 1,164 | 177 | ### 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:
order and judgment dated 02.01.2019, in Crl.M.P. No. 5697 of 2018 passed by the Learned Court of. The Principle Sessions Judge of Kancheepuram District at Chengalpattu, Tamil Nadu and the order of the High Court Registry, in not numbering the anticipatory bail petition of the petitioner-accused herein. 2. We need to refer to the basic facts necessary for the disposal of the case at hand. An FIR was filed against the three co-accused (Murugesan, S. M. Ekambaram and Ramaswamy), before the PS Pallikaranai, St. Thomas Mount, Kancheepuram District, Tamil Nadu, being Crime No. 937 of 2017, dated 03.04.2017, under Section 147, 148, 448, 302 and 506 of IPC. It is averred that subsequently Offence under Section 3(ii) of the Scheduled castes and the Scheduled Tribes (prevention of atrocities) Act, 1989 [‘SC/ST Act?] was also added. Further it is to be noted that the Petitioner herein was later arrayed as an accused by the police. In view of apprehension of arrest, the petitioner filed an Anticipatory Bail Application being Crl.M.P. No. 5697 of 2018, before the Learned Court of The Principal Sessions Judge of Kancheepuram at Chengalpattu. 3. The District Principal Judge by an Order dated 02.01.2019, dismissed the anticipatory bail application of the petitioner. Aggrieved by the same, petitioner approached the High Court of Madras seeking anticipatory bail, but the Registry of the High Court refused to number and list the matter before the court on the following office objection-?It may be stated how this petition for Anticipatory Bail is maintainable, since the offence is under SC/ST Act?Even though the petitioner herein replied to the aforesaid office objection, the High Court Registry rejected numbering of the petition and dismissed the Anticipatory Bail Petition on the issue of maintainability under SC/ST Act. 4. Aggrieved by such non-registration, the petitioner is before this Court on a question of law as to whether the Madras High Court Registry was wrong, in not numbering the Anticipatory-Bail Petition and as to whether consequent dismissal of the same on the issue of maintainability of the petition impinges on the judicial function of the High Court? 5. In view of the importance of the matter, this Court had requested the assistance of the Attorney General for India who acceded our request and assisted this Court. 6. Learned Attorney General has stated that the stance of the Registry of the Madras High Court in refusing to number the anticipatory bail application and not placing it before the appropriate bench is incorrect. He states that in light of the subsequent amendment of 2018 to the SC/ST Act, particularly the inclusion of Section 18A under the SC/ST Act, appropriate bench has to adjudicate the matter as the same is a judicial function. Therefore, the registry of the Madras High Court cannot refuse to number the anticipatory bail application on the ground of maintainability. 7. Recently, the Government amended the SC/ST Act, through The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 No. 27 of 2018, wherein a new provision being Section 18-A was inserted, which reads as under-"18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.". (emphasis added)8. We may note that the aforesaid amendment has been constitutionally challenged in various writ petitions listed before a different bench of this Court along with the R.P. (Crl.) No. 228 of 2018, titled Union of India v. State of Maharashtra and Others. However, the question before this Court herein is different, distinct and limited. We are only concerned with the question whether Registry could have questioned the maintainability of the Petition. 9. The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. A Constitution Bench of five judges in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677 , formulated the following criteria to ascertain whether a decision or an act is judicial function or not, in the following manner-(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule; (2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact. (emphasis added)The act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering.
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### Explanation:
9. The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice.act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering.
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Commissioner of Income Tax, Calcutta Vs. Karam Chand Thapar and Brothers Private Limited | only one question to the court for determination but declined to refer the other questions on the ground that the decision of the Tribunal was arrived at purely on the appreciation of the facts brought out in evidence and that these questions, in respect of which the Commissioner wanted a reference, were not questions of law which deserved to be referred to the court for determination. From this decision of the Tribunal, the Commissioner applied to the High Court for directing the Tribunal to refer the said questions also to the court for determination. The High Court, by its impugned judgment, rejected the said application. The present appeal is directed against the said decision of the High Court. 2. When the appeal reached hearing before us, Mr. Manchanda, learned counsel for the Commissioner, stated that he pressed the appeal only in respect of two questions which are as follows: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal had any evidence and had not relied on irrelevant or partly irrelevant materials in holding that the transactions entered into by the assessee in the purchase and sale of shares of Bharat Starch and Chemicals Ltd. and Greaves Cotton and Co. Ltd. were genuine commercial transactions and whether such finding was not otherwise unreasonable or perverse ? (2) Without prejudice to question No. (1), whether, on the facts and in the circumstances of the case, the Tribunals finding that the assessee entered into the transactions of purchase and sale of 25, 000 shares of Bharat Starch and Chemicals Ltd. and 3, 000 shares of Greaves Cotton and Co. Ltd. in the course of its business as a dealer in shares was based on no evidence or was otherwise unreasonable or perverse ? " 3. In deciding the question whether the Tribunal should have referred the aforesaid two questions to the court for determination, there are certain well-settled principles which have to be borne in mind. In CIT v. Dalmia Jain and Co. Ltd. [1972] 83 ITR 438 , this court held that whether a particular loss is a trading loss or a capital loss is primarily a question of fact. Where the Tribunal has come to a conclusion that the loss incurred by the assessee in the sale of shares held by it was a trading loss and it is not the case of the Department that in arriving at its decision, the Tribunal had taken into consideration any irrelevant material or failed to take into consideration any relevant material, there is no room for interference by the court. It is well-settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person, on the basis of facts before the Tribunal, could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. Keeping these principles in mind in the present case, we find that the Tribunal has taken note of all the relevant circumstances which appear on the record and which were referred to by the Departmental representatives before the Tribunal. It has not taken into account any material which could be said to be irrelevant in arriving at its conclusions. In considering whether the shares of Bharat Starch & Chemicals Ltd. and Greaves Cotton and Co. Ltd. were held by the assessee as stock-in-trade or as capital, the Tribunal has taken into account the fact that the assessee was earlier treated by the Department as a dealer in shares, as pointed out by Mr. Manchanda, but that circumstance cannot be regarded as irrelevant in view of the decision to which we have already referred. It is also not possible to say that the decision of the Tribunal is perverse. Mr. Manchanda strongly contended before us that the Tribunal has nowhere stated in terms that it has taken into consideration the totality of circumstances or the cumulative effect of the circumstances pointed out to the Tribunal and hence the matter should be remanded to the Tribunal. In our view, there is no substance in this submission. It is true that the Tribunal has not stated in terms that it has considered the cumulative effect of the circumstances pointed out to the Tribunal, but, on the other hand, a plain reading of the judgment of the Tribunal makes it clear that the Tribunal has, in fact, taken into account the cumulative effect of the circumstances on record before the Tribunal. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of facts, as if that were a magic formula ; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. | 0[ds]deciding the question whether the Tribunal should have referred the aforesaid two questions to the court for determination, there are certain well-settled principles which have to be borne in mind. In CIT v. Dalmia Jain and Co. Ltd. [1972] 83 ITR 438 , this court held that whether a particular loss is a trading loss or a capital loss is primarily a question of fact. Where the Tribunal has come to a conclusion that the loss incurred by the assessee in the sale of shares held by it was a trading loss and it is not the case of the Department that in arriving at its decision, the Tribunal had taken into consideration any irrelevant material or failed to take into consideration any relevant material, there is no room for interference by the court. It is well-settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person, on the basis of facts before the Tribunal, could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. Keeping these principles in mind in the present case, we find that the Tribunal has taken note of all the relevant circumstances which appear on the record and which were referred to by the Departmental representatives before the Tribunal. It has not taken into account any material which could be said to be irrelevant in arriving at its conclusions. In considering whether the shares of Bharat Starch & Chemicals Ltd. and Greaves Cotton and Co. Ltd. were held by the assessee as stock-in-trade or as capital, the Tribunal has taken into account the fact that the assessee was earlier treated by the Department as a dealer in shares, as pointed out by Mr. Manchanda, but that circumstance cannot be regarded as irrelevant in view of the decision to which we have already referred. It is also not possible to say that the decision of the Tribunal is perverse. Mr. Manchanda strongly contended before us that the Tribunal has nowhere stated in terms that it has taken into consideration the totality of circumstances or the cumulative effect of the circumstances pointed out to the Tribunal and hence the matter should be remanded to the Tribunal. In our view, there is no substance in this submission. It is true that the Tribunal has not stated in terms that it has considered the cumulative effect of the circumstances pointed out to the Tribunal, but, on the other hand, a plain reading of the judgment of the Tribunal makes it clear that the Tribunal has, in fact, taken into account the cumulative effect of the circumstances on record before the Tribunal. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of facts, as if that were a magic formula ; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. | 0 | 2,566 | 749 | ### 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:
only one question to the court for determination but declined to refer the other questions on the ground that the decision of the Tribunal was arrived at purely on the appreciation of the facts brought out in evidence and that these questions, in respect of which the Commissioner wanted a reference, were not questions of law which deserved to be referred to the court for determination. From this decision of the Tribunal, the Commissioner applied to the High Court for directing the Tribunal to refer the said questions also to the court for determination. The High Court, by its impugned judgment, rejected the said application. The present appeal is directed against the said decision of the High Court. 2. When the appeal reached hearing before us, Mr. Manchanda, learned counsel for the Commissioner, stated that he pressed the appeal only in respect of two questions which are as follows: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal had any evidence and had not relied on irrelevant or partly irrelevant materials in holding that the transactions entered into by the assessee in the purchase and sale of shares of Bharat Starch and Chemicals Ltd. and Greaves Cotton and Co. Ltd. were genuine commercial transactions and whether such finding was not otherwise unreasonable or perverse ? (2) Without prejudice to question No. (1), whether, on the facts and in the circumstances of the case, the Tribunals finding that the assessee entered into the transactions of purchase and sale of 25, 000 shares of Bharat Starch and Chemicals Ltd. and 3, 000 shares of Greaves Cotton and Co. Ltd. in the course of its business as a dealer in shares was based on no evidence or was otherwise unreasonable or perverse ? " 3. In deciding the question whether the Tribunal should have referred the aforesaid two questions to the court for determination, there are certain well-settled principles which have to be borne in mind. In CIT v. Dalmia Jain and Co. Ltd. [1972] 83 ITR 438 , this court held that whether a particular loss is a trading loss or a capital loss is primarily a question of fact. Where the Tribunal has come to a conclusion that the loss incurred by the assessee in the sale of shares held by it was a trading loss and it is not the case of the Department that in arriving at its decision, the Tribunal had taken into consideration any irrelevant material or failed to take into consideration any relevant material, there is no room for interference by the court. It is well-settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person, on the basis of facts before the Tribunal, could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. Keeping these principles in mind in the present case, we find that the Tribunal has taken note of all the relevant circumstances which appear on the record and which were referred to by the Departmental representatives before the Tribunal. It has not taken into account any material which could be said to be irrelevant in arriving at its conclusions. In considering whether the shares of Bharat Starch & Chemicals Ltd. and Greaves Cotton and Co. Ltd. were held by the assessee as stock-in-trade or as capital, the Tribunal has taken into account the fact that the assessee was earlier treated by the Department as a dealer in shares, as pointed out by Mr. Manchanda, but that circumstance cannot be regarded as irrelevant in view of the decision to which we have already referred. It is also not possible to say that the decision of the Tribunal is perverse. Mr. Manchanda strongly contended before us that the Tribunal has nowhere stated in terms that it has taken into consideration the totality of circumstances or the cumulative effect of the circumstances pointed out to the Tribunal and hence the matter should be remanded to the Tribunal. In our view, there is no substance in this submission. It is true that the Tribunal has not stated in terms that it has considered the cumulative effect of the circumstances pointed out to the Tribunal, but, on the other hand, a plain reading of the judgment of the Tribunal makes it clear that the Tribunal has, in fact, taken into account the cumulative effect of the circumstances on record before the Tribunal. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of facts, as if that were a magic formula ; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal.
### Response:
0
### Explanation:
deciding the question whether the Tribunal should have referred the aforesaid two questions to the court for determination, there are certain well-settled principles which have to be borne in mind. In CIT v. Dalmia Jain and Co. Ltd. [1972] 83 ITR 438 , this court held that whether a particular loss is a trading loss or a capital loss is primarily a question of fact. Where the Tribunal has come to a conclusion that the loss incurred by the assessee in the sale of shares held by it was a trading loss and it is not the case of the Department that in arriving at its decision, the Tribunal had taken into consideration any irrelevant material or failed to take into consideration any relevant material, there is no room for interference by the court. It is well-settled that the Tribunal is the final fact-finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person, on the basis of facts before the Tribunal, could have come to the conclusion to which the Tribunal has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. Keeping these principles in mind in the present case, we find that the Tribunal has taken note of all the relevant circumstances which appear on the record and which were referred to by the Departmental representatives before the Tribunal. It has not taken into account any material which could be said to be irrelevant in arriving at its conclusions. In considering whether the shares of Bharat Starch & Chemicals Ltd. and Greaves Cotton and Co. Ltd. were held by the assessee as stock-in-trade or as capital, the Tribunal has taken into account the fact that the assessee was earlier treated by the Department as a dealer in shares, as pointed out by Mr. Manchanda, but that circumstance cannot be regarded as irrelevant in view of the decision to which we have already referred. It is also not possible to say that the decision of the Tribunal is perverse. Mr. Manchanda strongly contended before us that the Tribunal has nowhere stated in terms that it has taken into consideration the totality of circumstances or the cumulative effect of the circumstances pointed out to the Tribunal and hence the matter should be remanded to the Tribunal. In our view, there is no substance in this submission. It is true that the Tribunal has not stated in terms that it has considered the cumulative effect of the circumstances pointed out to the Tribunal, but, on the other hand, a plain reading of the judgment of the Tribunal makes it clear that the Tribunal has, in fact, taken into account the cumulative effect of the circumstances on record before the Tribunal. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of facts, as if that were a magic formula ; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal.
|
The Bullion And Grain Exchange Ltd. And Others Vs. The State Of Punjab | it to be expected that any party on whom the tax is sought to be levied will voluntarily disclose that in the particular contract or in a number of contracts, the intention was not to deliver the goods but only to pay or receive the difference in price. Aware of these difficulties in the practical application of a law to levy tax on wagering contracts, the Legislature decided to levy tax on contracts for sale of goods in which actual delivery is not factually made or taken whatever be the intention at the time when the agreement was made.8. It appears clear therefore that the words "forward contract" as defined in the Act do not set out all the elements which are necessary to render a contract a wagering contract and so the impugned legislation to tax forward contracts as defined does not come within Entry 62.9. The learned Advocate General for the State of Punjab tried to convince us that even though the words used in defining forward contract may include contracts which do not amount to wagering contracts, they are wide enough to include certain contracts which may be wagering contracts because of the fact that the parties to the contract had no intention to deliver the goods. If the definition is wide enough to include contracts which are wagering contracts, be contends, the statute should not be struck down as a whole but should be held to be valid in respect only of such wagering contracts. On behalf of the appellants Mr. N. C. Chatterjee has drawn our attention to the provisions of registration of "dealers" in S. 6 and has argued that they very fact that the Legislature was calling upon persons dealing in "forward contracts" to register themselves and to prohibit dealing in forward contracts by non-registered dealers, justifies the conclusion that the Legislature was not thinking of wagering contracts at all. As against this it is proper to note that the Constitution itself contemplated taxation on "gambling" by State Legislatures. It is however on thing to tax gambling, and quite another thing for a Legislature to encourage gambling by asking persons to register themselves for this purpose. The definition of a "dealer" it has to be noticed includes "a limited concern, including, a Arhti, Chamber or association formed for the purpose of conducting business in forward contracts".10. While it might happen in fact that an association would be formed for the purpose of conducting business in wagering contract, it is hardly likely that the Legislature would take upon itself the task of openly permitting and recognizing such associations. These, in our opinion, are good reasons for thinking that the Legislature did not contemplate wagering contracts at all in defining "forward contract" in the way it did.11. Assuming however that the definition is wide enough to include wagering contracts, the question arises whether the portion of the Act which would then be valid is severable from the portion which would remain invalid. One of the rules approved by this Court in State of Bombay v. R. M. D. Chamarbaugwala, 1957 SCR 930 : ((S) AIR 1957 SC 628 ) for deciding this question was laid down in these words :"In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute is invalid."A second rule was that if "the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety."12. Applying either of these rules, we are bound to hold that the entire Act should in the present case be held invalid. It seems to us clear that if the Legislature had been conscious that taxation on all forward contracts was not within its legislative competence it would have at once seen that because of the difficulty of finding out which among the contracts for sale of goods on a future date are wagering contracts, it would not be worthwhile to enact any law for taxing wagering contracts only. It is equally clear that once the law is held to be invalid as regards forward contracts other than wagering contracts, what is left is "so thin and truncated as to be in substance different from what it was when it emerged out of the legislature". The respondents contention that the statute should be held to be valid in respect of wagering contracts even though invalid as regards other forward contracts must therefore also be rejected.13. Our conclusion therefore is that the impugned statute does not fall within Item 62 of the State List and that it is beyond the legislative competence of the State Legislature. The appellants were therefore entitled to appropriate reliefs as prayed for in their petition under Art. 226 of the Constitution.14. We therefore allow this appeal, set aside the order of the High Court and direct that the petition under Art. 226 of the Constitution be allowed and declare that the Punjab Forward Contracts Tax Act No. VII of 1951 is void and unconstitutional as it is ultra vires the powers of the State legislature, that the notification made under the rules promulgated by the respondent under this Act is also void and unconstitutional, and that a mandamus do issue directing the respondent to allow the petitioners to carry on the business of forward contracts or as commission agents for forward contracts unrestricted by the provisions of the said Punjab Forward contracts Tax Act No. VII of 1951 and the rules thereunder and not to enforce the provisions of this Act and the rules. | 1[ds]5. If the impugned Act provides for a tax on betting and gambling then and then only it can come within Item 62. The Act provides for the levy of a tax on forward contracts and It has defined "forward contracts" is S. 2 in these words : "Forward contracts" means an agreement, oral or written, for sale of goods on a future date but on the basis of which actual delivery of goods is not made or taken but only the difference between the price of the goods agreed upon and that prevailing on the date mentioned in the agreement or any other date is paid or received by the parties." "Dealer" is defined in the same section to mean "any person, firm, Hindu Joint family or limited concern, including an arhti or "chamber" or association formed for the purpose of conducting business in forward contracts, who conducts such business in the course of trade in the State either on his own behalf or on behalf of any other person, arhti, "chamber" or association". "Sale" is defined to mean "the final settlement in respect of an agreement to sell goods mentioned in a forward contract, and it shall be deemed to have been completed on the date originally fixed in the forward contract for this purpose or any other date on which the final settlement is made." Section 4 is the charging section and provides for a levy on the business in forward contracts of a dealer a tax at such rates as the Government may by notification direct. Section 5 lays tax under this Act as long as he continues his business in forward contracts. Section 6 prohibits any dealer from carrying on business in forward contracts unless he has been registered and possesses a registration certificate. Section 7 deals with the mode of payment of the tax and for submission of returns while S. 8 provides for assessment of the tax.6. As the terms "forward contract" has been defined in the statute itself we have to forget for the purpose of deciding the present question any other notion about what a "forward contract" means. For the purpose of this statute every agreement for sale of goods on a future date is not a "forward contract". It has to be an agreement for the sale of goods on a future date and has to satisfy two other conditions, viz., (1) actual delivery of the goods is not made on the basis of the agreement and (2) the difference between the price of the goods agreed upon and that prevailing on the date mentioned in the agreement or any other date is paid by the buyer or received by the seller. The test of a forward contract under this definition is that delivery of goods is not made or taken but only the difference between the price of the goods as agreed upon and that prevailing on some other date is paid. Is such a contract necessarily a wagering contract and therefore gambling?7. When two parties enter into a formal contract for the sale and purchase of goods at a given price, and for their delivery at a given time it may be that they never intended an actual transfer of goods at all, but they intended only to pay or receive the difference according as the market price should vary from the contract price. When such is the intention it has been held that that is not a commercial transaction but a wager on the rise or fall of the market, which comes within the connotation of "gambling". It is the fact that though in form an agreement for sale purports to contemplate delivery of the goods and the payment of the price, neither delivery nor payment of the price is contemplated by the parties and what is contemplated is merely the receipt and payment of the difference between the contract price and the price on a later day that makes the contract a wagering contract. In the definition of "forward contract" in the impugned Act there is no reference, directly or indirectly to such an intention. It is only by reading for the words "actual delivery of goods is not made or taken" the words "actual delivery of goods is not to be made or taken" and by substituting for the words "is paid or received by the parties" the words "is to be paid or received by the parties" and also by omitting the words "on the basis of which" that the words "forward contract" as defined in the section can be held to refer to a wagering contract. This however we are not entitled to do. The reason why the Legislature did not use the words "to be made or taken" or "to be paid or received" in the definition clause is not far to seek. All agreement oral or written which in terms provides that actual delivery is not to be made or taken and that the entire price of the goods is not to be paid and only the difference between the price of the goods agreed upon and that prevailing on some other date would be paid would be hit by S. 30 of the Contract Act and would not be enforceable. Parties to a written agreement for sale of goods would therefore take good care to see that the terms do not provide that delivery should not be made but only the difference is to be paid. There might be an oral understanding between the parties that no delivery should be demanded or made, but that only difference should be paid. But it will be next to impossible for a tax being imposed on the proof of such intention not expressed in the written contract. When the agreement for sale of goods is oral, but the parties agree as between themselves that no delivery would be made, but difference in price would be paid, it would be equally impossible for a taxing authority to discover in which of the contracts such an agreement has been made. The dispute whether a particular contract is a wagering contract or not arises in Civil Courts generally when the contract of sale is sought to be enforced and one of the parties tries to avoid the contract by recourse to S. 30 of the Contract Act. When such a dispute comes before the Court, it becomes necessary to consider all the circumstances to see whether they warrant the legal inference that the parties never intended any actual delivery but intended only to pay or receive the difference according as the market price should vary from the contract price. It is therefore well nigh impossible for any taxing authority to brand a particular forward contract as a wagering contracts nor is it to be expected that any party on whom the tax is sought to be levied will voluntarily disclose that in the particular contract or in a number of contracts, the intention was not to deliver the goods but only to pay or receive the difference in price. Aware of these difficulties in the practical application of a law to levy tax on wagering contracts, the Legislature decided to levy tax on contracts for sale of goods in which actual delivery is not factually made or taken whatever be the intention at the time when the agreement was made.8. It appears clear therefore that the words "forward contract" as defined in the Act do not set out all the elements which are necessary to render a contract a wagering contract and so the impugned legislation to tax forward contracts as defined does not come within Entrythe definition is wide enough to include contracts which are wagering contracts, be contends, the statute should not be struck down as a whole but should be held to be valid in respect only of such wagering contracts. On behalf of the appellants Mr. N. C. Chatterjee has drawn our attention to the provisions of registration of "dealers" in S. 6 and has argued that they very fact that the Legislature was calling upon persons dealing in "forward contracts" to register themselves and to prohibit dealing in forward contracts bydealers, justifies the conclusion that the Legislature was not thinking of wagering contracts at all. As against this it is proper to note that the Constitution itself contemplated taxation on "gambling" by State Legislatures. It is however on thing to tax gambling, and quite another thing for a Legislature to encourage gambling by asking persons to register themselves for this purpose. The definition of a "dealer" it has to be noticed includes "a limited concern, including, a Arhti, Chamber or association formed for the purpose of conducting business in forward contracts".Applying either of these rules, we are bound to hold that the entire Act should in the present case be held invalid. It seems to us clear that if the Legislature had been conscious that taxation on all forward contracts was not within its legislative competence it would have at once seen that because of the difficulty of finding out which among the contracts for sale of goods on a future date are wagering contracts, it would not be worthwhile to enact any law for taxing wagering contracts only. It is equally clear that once the law is held to be invalid as regards forward contracts other than wagering contracts, what is left is "so thin and truncated as to be in substance different from what it was when it emerged out of the legislature". The respondents contention that the statute should be held to be valid in respect of wagering contracts even though invalid as regards other forward contracts must therefore also be rejected.13. Our conclusion therefore is that the impugned statute does not fall within Item 62 of the State List and that it is beyond the legislative competence of the State Legislature. The appellants were therefore entitled to appropriate reliefs as prayed for in their petition under Art. 226 of the Constitution.14. We therefore allow this appeal, set aside the order of the High Court and direct that the petition under Art. 226 of the Constitution be allowed and declare that the Punjab Forward Contracts Tax Act No. VII of 1951 is void and unconstitutional as it is ultra vires the powers of the State legislature, that the notification made under the rules promulgated by the respondent under this Act is also void and unconstitutional, and that a mandamus do issue directing the respondent to allow the petitioners to carry on the business of forward contracts or as commission agents for forward contracts unrestricted by the provisions of the said Punjab Forward contracts Tax Act No. VII of 1951 and the rules thereunder and not to enforce the provisions of this Act and the rules. | 1 | 2,814 | 1,956 | ### 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:
it to be expected that any party on whom the tax is sought to be levied will voluntarily disclose that in the particular contract or in a number of contracts, the intention was not to deliver the goods but only to pay or receive the difference in price. Aware of these difficulties in the practical application of a law to levy tax on wagering contracts, the Legislature decided to levy tax on contracts for sale of goods in which actual delivery is not factually made or taken whatever be the intention at the time when the agreement was made.8. It appears clear therefore that the words "forward contract" as defined in the Act do not set out all the elements which are necessary to render a contract a wagering contract and so the impugned legislation to tax forward contracts as defined does not come within Entry 62.9. The learned Advocate General for the State of Punjab tried to convince us that even though the words used in defining forward contract may include contracts which do not amount to wagering contracts, they are wide enough to include certain contracts which may be wagering contracts because of the fact that the parties to the contract had no intention to deliver the goods. If the definition is wide enough to include contracts which are wagering contracts, be contends, the statute should not be struck down as a whole but should be held to be valid in respect only of such wagering contracts. On behalf of the appellants Mr. N. C. Chatterjee has drawn our attention to the provisions of registration of "dealers" in S. 6 and has argued that they very fact that the Legislature was calling upon persons dealing in "forward contracts" to register themselves and to prohibit dealing in forward contracts by non-registered dealers, justifies the conclusion that the Legislature was not thinking of wagering contracts at all. As against this it is proper to note that the Constitution itself contemplated taxation on "gambling" by State Legislatures. It is however on thing to tax gambling, and quite another thing for a Legislature to encourage gambling by asking persons to register themselves for this purpose. The definition of a "dealer" it has to be noticed includes "a limited concern, including, a Arhti, Chamber or association formed for the purpose of conducting business in forward contracts".10. While it might happen in fact that an association would be formed for the purpose of conducting business in wagering contract, it is hardly likely that the Legislature would take upon itself the task of openly permitting and recognizing such associations. These, in our opinion, are good reasons for thinking that the Legislature did not contemplate wagering contracts at all in defining "forward contract" in the way it did.11. Assuming however that the definition is wide enough to include wagering contracts, the question arises whether the portion of the Act which would then be valid is severable from the portion which would remain invalid. One of the rules approved by this Court in State of Bombay v. R. M. D. Chamarbaugwala, 1957 SCR 930 : ((S) AIR 1957 SC 628 ) for deciding this question was laid down in these words :"In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute is invalid."A second rule was that if "the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety."12. Applying either of these rules, we are bound to hold that the entire Act should in the present case be held invalid. It seems to us clear that if the Legislature had been conscious that taxation on all forward contracts was not within its legislative competence it would have at once seen that because of the difficulty of finding out which among the contracts for sale of goods on a future date are wagering contracts, it would not be worthwhile to enact any law for taxing wagering contracts only. It is equally clear that once the law is held to be invalid as regards forward contracts other than wagering contracts, what is left is "so thin and truncated as to be in substance different from what it was when it emerged out of the legislature". The respondents contention that the statute should be held to be valid in respect of wagering contracts even though invalid as regards other forward contracts must therefore also be rejected.13. Our conclusion therefore is that the impugned statute does not fall within Item 62 of the State List and that it is beyond the legislative competence of the State Legislature. The appellants were therefore entitled to appropriate reliefs as prayed for in their petition under Art. 226 of the Constitution.14. We therefore allow this appeal, set aside the order of the High Court and direct that the petition under Art. 226 of the Constitution be allowed and declare that the Punjab Forward Contracts Tax Act No. VII of 1951 is void and unconstitutional as it is ultra vires the powers of the State legislature, that the notification made under the rules promulgated by the respondent under this Act is also void and unconstitutional, and that a mandamus do issue directing the respondent to allow the petitioners to carry on the business of forward contracts or as commission agents for forward contracts unrestricted by the provisions of the said Punjab Forward contracts Tax Act No. VII of 1951 and the rules thereunder and not to enforce the provisions of this Act and the rules.
### Response:
1
### Explanation:
not far to seek. All agreement oral or written which in terms provides that actual delivery is not to be made or taken and that the entire price of the goods is not to be paid and only the difference between the price of the goods agreed upon and that prevailing on some other date would be paid would be hit by S. 30 of the Contract Act and would not be enforceable. Parties to a written agreement for sale of goods would therefore take good care to see that the terms do not provide that delivery should not be made but only the difference is to be paid. There might be an oral understanding between the parties that no delivery should be demanded or made, but that only difference should be paid. But it will be next to impossible for a tax being imposed on the proof of such intention not expressed in the written contract. When the agreement for sale of goods is oral, but the parties agree as between themselves that no delivery would be made, but difference in price would be paid, it would be equally impossible for a taxing authority to discover in which of the contracts such an agreement has been made. The dispute whether a particular contract is a wagering contract or not arises in Civil Courts generally when the contract of sale is sought to be enforced and one of the parties tries to avoid the contract by recourse to S. 30 of the Contract Act. When such a dispute comes before the Court, it becomes necessary to consider all the circumstances to see whether they warrant the legal inference that the parties never intended any actual delivery but intended only to pay or receive the difference according as the market price should vary from the contract price. It is therefore well nigh impossible for any taxing authority to brand a particular forward contract as a wagering contracts nor is it to be expected that any party on whom the tax is sought to be levied will voluntarily disclose that in the particular contract or in a number of contracts, the intention was not to deliver the goods but only to pay or receive the difference in price. Aware of these difficulties in the practical application of a law to levy tax on wagering contracts, the Legislature decided to levy tax on contracts for sale of goods in which actual delivery is not factually made or taken whatever be the intention at the time when the agreement was made.8. It appears clear therefore that the words "forward contract" as defined in the Act do not set out all the elements which are necessary to render a contract a wagering contract and so the impugned legislation to tax forward contracts as defined does not come within Entrythe definition is wide enough to include contracts which are wagering contracts, be contends, the statute should not be struck down as a whole but should be held to be valid in respect only of such wagering contracts. On behalf of the appellants Mr. N. C. Chatterjee has drawn our attention to the provisions of registration of "dealers" in S. 6 and has argued that they very fact that the Legislature was calling upon persons dealing in "forward contracts" to register themselves and to prohibit dealing in forward contracts bydealers, justifies the conclusion that the Legislature was not thinking of wagering contracts at all. As against this it is proper to note that the Constitution itself contemplated taxation on "gambling" by State Legislatures. It is however on thing to tax gambling, and quite another thing for a Legislature to encourage gambling by asking persons to register themselves for this purpose. The definition of a "dealer" it has to be noticed includes "a limited concern, including, a Arhti, Chamber or association formed for the purpose of conducting business in forward contracts".Applying either of these rules, we are bound to hold that the entire Act should in the present case be held invalid. It seems to us clear that if the Legislature had been conscious that taxation on all forward contracts was not within its legislative competence it would have at once seen that because of the difficulty of finding out which among the contracts for sale of goods on a future date are wagering contracts, it would not be worthwhile to enact any law for taxing wagering contracts only. It is equally clear that once the law is held to be invalid as regards forward contracts other than wagering contracts, what is left is "so thin and truncated as to be in substance different from what it was when it emerged out of the legislature". The respondents contention that the statute should be held to be valid in respect of wagering contracts even though invalid as regards other forward contracts must therefore also be rejected.13. Our conclusion therefore is that the impugned statute does not fall within Item 62 of the State List and that it is beyond the legislative competence of the State Legislature. The appellants were therefore entitled to appropriate reliefs as prayed for in their petition under Art. 226 of the Constitution.14. We therefore allow this appeal, set aside the order of the High Court and direct that the petition under Art. 226 of the Constitution be allowed and declare that the Punjab Forward Contracts Tax Act No. VII of 1951 is void and unconstitutional as it is ultra vires the powers of the State legislature, that the notification made under the rules promulgated by the respondent under this Act is also void and unconstitutional, and that a mandamus do issue directing the respondent to allow the petitioners to carry on the business of forward contracts or as commission agents for forward contracts unrestricted by the provisions of the said Punjab Forward contracts Tax Act No. VII of 1951 and the rules thereunder and not to enforce the provisions of this Act and the rules.
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Sangamner Bhag Sahakari Karkhana Ltd Vs. Krupp Industries Ltd | the parties being afforded an opportunity of re-arguing the same question before the arbitrators as the arbitrators could not assume jurisdiction over an issue which was not referred to them. (6) On 19/10/1994 the appellant served a notice on the respondent setting out several disputes arising between the parties. One of the disputes raised therein reads as under: Till today, we have spent Rs. 107.54 lakhs on the said plant, which it is abundantly clear that will not give required results as agreed not even optimum to the norms laid down by the excise rules. Therefore, Rs. 107.54 lakhs will be straightway loss to my client and there will be also loss of interest at the rate of 18% per year from 1/05/1993 onwards. In the circumstances my clients have instructed me to call upon you which I hereby do to reimburse the loss suffered by my clients to the tune of Rs. 237.83 lakhs within a week from today. (7) On 26-12-1994 once again a notice was served by the appellant on the respondent appointing its own arbitrator calling upon the respondent to appoint its and in the contents of the notice it was specifically stated that they were the questions, disputes and differences mentioned in the notice dated 19-10-1994 which shall be referred to the arbitration. During the pendency of the arbitration proceeding, on 24/07/1995, a memorandum of understanding was arrived at between the parties which suggests that it was the dispute referred to in the notice dated 19-10-1994 for which trial-runs were being conducted. The notice dated 12-9-1995 served by the appellant on the respondent reiterates that it was the failure on the part of the respondent to manufacture and supply the plant and comply with the terms of agreement that had caused total failure entitling the appellant for refund of total amount of advance paid by the appellant to the respondent. In its reply dated 30-9-1995 the respondent had told the appellant that the matter was already before the arbitrators and the respondent reserved the right to file an appropriate written statement before the arbitrator disputing the claim made by the appellant and it was not necessary to give a detailed reply in response to the appellants notice. We have also perused the statements of claim and their responses filed by the parties before the arbitrators. We find that the claim for Rs. 107.54 lacs and the interest thereon raised by the appellant against the respondent was very much before the arbitrators and the parties also proceeded on the assumption that this dispute was before the arbitrators and liable to the adjudicated upon by them. Issues Nos. 10, 11 and 12 framed by the arbitrators are: 10) Does the claimant prove that it spent Rs. 107.54 lacs on the plant and the plant has gone waste for not getting the guaranteed performance? 11) Is the claimant entitled to Rs. 107.54 lacs as actual damages? 12) Is the claimant entitled to Rs.45.46 lacs as interest on the said amount of Rs.107.54 lacs? The issues are widely worded and include within their sweep the dispute arising for decisions and as was adjudicating upon by award. (8) The arbitration agreement between the parties opens as under: 18.0 Arbitration:If at any time there should be any question, dispute or difference between the parties in respect of any matter arising out of or in relation to this agreement, either party may give to the other party notice in writing of the existence of such question, dispute or difference and the same shall be referred to arbitration... (9) In Renusagar Power Co. Ltd. v. General Electric Company and Anr. (1984) 4 SCC 679 , this Court has held: Whether a given dispute inclusive of the arbitrators jurisdiction comes within the scope or purview of an arbitration clause or not primarily depends upon the terms of the clause itself; it is a question of what the parties intend to provide and what language they employ. Expressions such as arising out of or in respect of or in connection with or in relation to or in consequence of or concerning or relating to the contract are of the widest amplitude. In our opinion, it is the substance of the claim made before arbitrators which has to be seen. The Court would not construe the nature of claim by adopting too technical an approach or by indulging into hair-splitting. Else the whole purpose behind holding arbitration proceedings as an alternate to civil courts forum would stand defeated. We have carefully perused the arbitration clause and the disputes referred and adjudicated upon by the arbitrators. We find it difficult to sustain the findings of the High Court that the arbitrators had determined an issue which was beyond the scope of reference to the arbitration. The disputes did arise out of the contract between the parties and the arbitrators were seized of the disputes within the scope of reference to them. The parties have also joined in the contest before the arbitrators having understood the scope of controversy, as already stated hereinabove. (10) Clause (c) of sub-section (1) of Section 16 contemplates an award being remitted to the arbitrators or Umpire for reconsideration upon such terms as the Court thinks fit where an objection to the legality of the award is apparent upon the face of it. As held recently by this Court in Ramachandra Reddy and Co. v. State of A.P. and Ors. (2001) 4 SCC 241 the jurisdiction to remit an award by the Court to the arbitrators is a discretionary jurisdiction conferred on the Court and so long as the said discretion has been judicially exercised an Appellate Court would not be justified in interfering with the exercise of discretion unless the discretion is misused. In our opinion no fault can be found with the discretion exercised by the learned Civil Judge, Senior Division. The High Court has erroneously formed an opinion that part of the award was beyond the jurisdiction of the arbitrators. | 1[ds](4) We have heard the learned counsel for the parties at length who have apart from making legal submissions carried the Court through the pleadings, the relevant correspondence between the parties, several documents and the proceedings before the arbitrators. However it is not necessary for us to deal with the same in very many details as we have formed an opinion that the impugned judgment of the High Court deserves to be set aside and the order of the learned Civil Judge deserves to be restored(5) A perusal of the judgment of the learned Civil Judge, Senior Division shows the learned Judge having formed an opinion that the award suffered from an error apparent on its face. There was an omission on the part of the learned arbitrators to consider a few relevant documents available on record which in the opinion of the learned Civil Judge if taken into consideration the finding of the arbitrators would not have been what it is. The learned Civil Judge also formed an opinion that there was a violation of the principles of natural justice inasmuch as the parties were not afforded a hearing on the issue on which the learned arbitrators had based their decision. The learned Civil Judge was of the opinion that on totality of the facts and circumstances of the case instead of setting aside the award the same deserved to be remitted to the arbitrators with the request to render the award afresh. The High Court has however, formed an opinion that to the extent to which the award has been set aside by the High Court it was beyond the scope of reference to the arbitration and hence there was no question of the parties being afforded an opportunity of re-arguing the same question before the arbitrators as the arbitrators could not assume jurisdiction over an issue which was not referred to them(10) Clause (c) of sub-section (1) of Section 16 contemplates an award being remitted to the arbitrators or Umpire for reconsideration upon such terms as the Court thinks fit where an objection to the legality of the award is apparent upon the face of it. As held recently by this Court in Ramachandra Reddy and Co. v. State of A.P. and Ors. (2001) 4 SCC 241 the jurisdiction to remit an award by the Court to the arbitrators is a discretionary jurisdiction conferred on the Court and so long as the said discretion has been judicially exercised an Appellate Court would not be justified in interfering with the exercise of discretion unless the discretion is misused. In our opinion no fault can be found with the discretion exercised by the learned Civil Judge, Senior Division. The High Court has erroneously formed an opinion that part of the award was beyond the jurisdiction of the arbitrators | 1 | 1,797 | 502 | ### 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 parties being afforded an opportunity of re-arguing the same question before the arbitrators as the arbitrators could not assume jurisdiction over an issue which was not referred to them. (6) On 19/10/1994 the appellant served a notice on the respondent setting out several disputes arising between the parties. One of the disputes raised therein reads as under: Till today, we have spent Rs. 107.54 lakhs on the said plant, which it is abundantly clear that will not give required results as agreed not even optimum to the norms laid down by the excise rules. Therefore, Rs. 107.54 lakhs will be straightway loss to my client and there will be also loss of interest at the rate of 18% per year from 1/05/1993 onwards. In the circumstances my clients have instructed me to call upon you which I hereby do to reimburse the loss suffered by my clients to the tune of Rs. 237.83 lakhs within a week from today. (7) On 26-12-1994 once again a notice was served by the appellant on the respondent appointing its own arbitrator calling upon the respondent to appoint its and in the contents of the notice it was specifically stated that they were the questions, disputes and differences mentioned in the notice dated 19-10-1994 which shall be referred to the arbitration. During the pendency of the arbitration proceeding, on 24/07/1995, a memorandum of understanding was arrived at between the parties which suggests that it was the dispute referred to in the notice dated 19-10-1994 for which trial-runs were being conducted. The notice dated 12-9-1995 served by the appellant on the respondent reiterates that it was the failure on the part of the respondent to manufacture and supply the plant and comply with the terms of agreement that had caused total failure entitling the appellant for refund of total amount of advance paid by the appellant to the respondent. In its reply dated 30-9-1995 the respondent had told the appellant that the matter was already before the arbitrators and the respondent reserved the right to file an appropriate written statement before the arbitrator disputing the claim made by the appellant and it was not necessary to give a detailed reply in response to the appellants notice. We have also perused the statements of claim and their responses filed by the parties before the arbitrators. We find that the claim for Rs. 107.54 lacs and the interest thereon raised by the appellant against the respondent was very much before the arbitrators and the parties also proceeded on the assumption that this dispute was before the arbitrators and liable to the adjudicated upon by them. Issues Nos. 10, 11 and 12 framed by the arbitrators are: 10) Does the claimant prove that it spent Rs. 107.54 lacs on the plant and the plant has gone waste for not getting the guaranteed performance? 11) Is the claimant entitled to Rs. 107.54 lacs as actual damages? 12) Is the claimant entitled to Rs.45.46 lacs as interest on the said amount of Rs.107.54 lacs? The issues are widely worded and include within their sweep the dispute arising for decisions and as was adjudicating upon by award. (8) The arbitration agreement between the parties opens as under: 18.0 Arbitration:If at any time there should be any question, dispute or difference between the parties in respect of any matter arising out of or in relation to this agreement, either party may give to the other party notice in writing of the existence of such question, dispute or difference and the same shall be referred to arbitration... (9) In Renusagar Power Co. Ltd. v. General Electric Company and Anr. (1984) 4 SCC 679 , this Court has held: Whether a given dispute inclusive of the arbitrators jurisdiction comes within the scope or purview of an arbitration clause or not primarily depends upon the terms of the clause itself; it is a question of what the parties intend to provide and what language they employ. Expressions such as arising out of or in respect of or in connection with or in relation to or in consequence of or concerning or relating to the contract are of the widest amplitude. In our opinion, it is the substance of the claim made before arbitrators which has to be seen. The Court would not construe the nature of claim by adopting too technical an approach or by indulging into hair-splitting. Else the whole purpose behind holding arbitration proceedings as an alternate to civil courts forum would stand defeated. We have carefully perused the arbitration clause and the disputes referred and adjudicated upon by the arbitrators. We find it difficult to sustain the findings of the High Court that the arbitrators had determined an issue which was beyond the scope of reference to the arbitration. The disputes did arise out of the contract between the parties and the arbitrators were seized of the disputes within the scope of reference to them. The parties have also joined in the contest before the arbitrators having understood the scope of controversy, as already stated hereinabove. (10) Clause (c) of sub-section (1) of Section 16 contemplates an award being remitted to the arbitrators or Umpire for reconsideration upon such terms as the Court thinks fit where an objection to the legality of the award is apparent upon the face of it. As held recently by this Court in Ramachandra Reddy and Co. v. State of A.P. and Ors. (2001) 4 SCC 241 the jurisdiction to remit an award by the Court to the arbitrators is a discretionary jurisdiction conferred on the Court and so long as the said discretion has been judicially exercised an Appellate Court would not be justified in interfering with the exercise of discretion unless the discretion is misused. In our opinion no fault can be found with the discretion exercised by the learned Civil Judge, Senior Division. The High Court has erroneously formed an opinion that part of the award was beyond the jurisdiction of the arbitrators.
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(4) We have heard the learned counsel for the parties at length who have apart from making legal submissions carried the Court through the pleadings, the relevant correspondence between the parties, several documents and the proceedings before the arbitrators. However it is not necessary for us to deal with the same in very many details as we have formed an opinion that the impugned judgment of the High Court deserves to be set aside and the order of the learned Civil Judge deserves to be restored(5) A perusal of the judgment of the learned Civil Judge, Senior Division shows the learned Judge having formed an opinion that the award suffered from an error apparent on its face. There was an omission on the part of the learned arbitrators to consider a few relevant documents available on record which in the opinion of the learned Civil Judge if taken into consideration the finding of the arbitrators would not have been what it is. The learned Civil Judge also formed an opinion that there was a violation of the principles of natural justice inasmuch as the parties were not afforded a hearing on the issue on which the learned arbitrators had based their decision. The learned Civil Judge was of the opinion that on totality of the facts and circumstances of the case instead of setting aside the award the same deserved to be remitted to the arbitrators with the request to render the award afresh. The High Court has however, formed an opinion that to the extent to which the award has been set aside by the High Court it was beyond the scope of reference to the arbitration and hence there was no question of the parties being afforded an opportunity of re-arguing the same question before the arbitrators as the arbitrators could not assume jurisdiction over an issue which was not referred to them(10) Clause (c) of sub-section (1) of Section 16 contemplates an award being remitted to the arbitrators or Umpire for reconsideration upon such terms as the Court thinks fit where an objection to the legality of the award is apparent upon the face of it. As held recently by this Court in Ramachandra Reddy and Co. v. State of A.P. and Ors. (2001) 4 SCC 241 the jurisdiction to remit an award by the Court to the arbitrators is a discretionary jurisdiction conferred on the Court and so long as the said discretion has been judicially exercised an Appellate Court would not be justified in interfering with the exercise of discretion unless the discretion is misused. In our opinion no fault can be found with the discretion exercised by the learned Civil Judge, Senior Division. The High Court has erroneously formed an opinion that part of the award was beyond the jurisdiction of the arbitrators
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Bank Of Maharashtra Vs. Pandurang Keshav Gorwardkar | If the debtor company is not in liquidation nor any provisional liquidator has been appointed and merely winding up proceedings are pending, there is no question of distribution of sale proceeds among secured creditors in the manner prescribed in Section 19(19) of the 1993 Act.(ii) Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of their dues over the security of every secured creditor and this charge is pari passu with that of the secured creditor. Such statutory charge is to the extent of workmen’s portion in relation to the security held by the secured creditor of the debtor company.(iii) The above position is equally applicable where the assets of the debtor company have been sold in execution of the recovery certificate obtained by the bank or financial institution against the debtor company when it was not in liquidation but before the proceeds realized from such sale could be fully and finally disbursed, the company had gone into liquidation. In other words, pending final disbursement of the proceeds realized from the sale of security in execution of the recovery certificate issued by the debt recovery tribunal, if debtor company becomes company in winding up, Section 529A read with Section 529(1)(c) proviso come into operation and statutory charge is created in favour of workmen in respect of their dues over such proceeds.(iv) The relevant date for arriving at the ratio at which the sale proceeds are to be distributed amongst workmen and secured creditors of the debtor company is the date of the winding up order and not the date of sale.(v) The conclusions (ii) to (iv) shall be mutatis mutandis applicable where provisional liquidator has been appointed in respect of the debtor company.(vi) Where the winding up petition against the debtor company is pending but no order of winding up has been passed nor any provisional liquidator has been appointed in respect of such company at the time of order of sale by DRT and the properties of the debtor company have been sold in execution of the recovery certificate and proceeds of sale realized and full disbursement of the sale proceeds has been made to the concerned bank or financial institution, the subsequent event of the debtor company going into liquidation is no ground for reopening disbursement by the DRT.(vii) However, before full and final disbursement of sale proceeds, if the debtor company has gone into liquidation and a liquidator is appointed, disbursement of undisbursed proceeds by DRT can only be done after notice to the liquidator and after hearing him. In that situation if there is claim of workmen’s dues, the DRT has two options available with it. One, the bank or financial institution which made an application before DRT for recovery of debt from the debtor company may be paid the undisbursed amount against due debt as per the recovery certificate after securing an indemnity bond of restitution of the amount to the extent of workmen’s dues as may be finally determined by the liquidator of the debtor company and payable to workmen in the proportion set out in the illustration appended to Section 529(3)(c) of the Companies Act. The other, DRT may set apart tentatively portion of the undisbursed amount towards workmen’s dues in the ratio as per the illustration following Section 529(3)(c) and disburse the balance amount to the applicant bank or financial institution subject to an undertaking by such bank or financial institution to restitute the amount to the extent workmen’s dues as may be finally determined by the liquidator, falls short of the amount which may be distributable to the workmen as per the above illustration. The amount so set apart may be disbursed to the liquidator towards workmen’s dues on ad hoc basis subject to adjustment on final determination of the workmen’s dues by the liquidator.(viii) The first option must be exercised by DRT only in a situation where no application for distribution towards workmen’s dues against the debtor company has been made by the liquidator or the workmen before the DRT.(ix) Where the sale of security has been effected in execution of recovery certificate issued by the DRT under the 1993 Act, the distribution of sale proceeds has to be made by the DRT alone in accordance with Section 529A of the Companies Act and by no other forum or authority.(x) The workmen of the company in winding up acquire the standing of the secured creditors on and from the date of winding up order (or where provisional liquidator has been appointed, from the date of such appointment) and they become entitled to the distribution of sale proceeds in the ratio as explained in the illustration appended to Section 529(3)(c) of the Companies Act.(xi) Section 19(19) of the 1993 Act does not clothe DRT with jurisdiction to determine the workmen’s claim against the debtor company. The adjudication of workmen’s dues against the debtor company in liquidation has to be made by the liquidator. In other words, once the company is in winding up the only competent authority to determine the workmen’s dues is the liquidator who obviously has to act under the supervision of the company court and by no other authority.(xii) Section 19 (19) is attracted only where a debtor company is in winding up or a provisional liquidator has been appointed in respect of such company. If the debtor company is not in liquidation or if in respect of such company no order of appointment of provisional liquidator has been made and merely winding up proceedings are pending, the question of distribution of sale proceeds among secured creditors in the manner prescribed in Section19(19) of the 1993 Act does not arise. 73. For the above conclusions, we hold, as it must be held, that the claims of the workmen who claim to be entitled to payment pari passu have to be considered and adjudicated by the liquidator of the debtor company and not by the DRT. We answer the question accordingly. | 1[ds]72. In light of the above discussion, we sum up our conclusionsIf the debtor company is not in liquidation nor any provisional liquidator has been appointed and merely winding up proceedings are pending, there is no question of distribution of sale proceeds among secured creditors in the manner prescribed in Section 19(19) of the 1993 Act.(ii) Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of their dues over the security of every secured creditor and this charge is pari passu with that of the secured creditor. Such statutory charge is to the extent ofportion in relation to the security held by the secured creditor of the debtor company.(iii) The above position is equally applicable where the assets of the debtor company have been sold in execution of the recovery certificate obtained by the bank or financial institution against the debtor company when it was not in liquidation but before the proceeds realized from such sale could be fully and finally disbursed, the company had gone into liquidation. In other words, pending final disbursement of the proceeds realized from the sale of security in execution of the recovery certificate issued by the debt recovery tribunal, if debtor company becomes company in winding up, Section 529A read with Section 529(1)(c) proviso come into operation and statutory charge is created in favour of workmen in respect of their dues over such proceeds.(iv) The relevant date for arriving at the ratio at which the sale proceeds are to be distributed amongst workmen and secured creditors of the debtor company is the date of the winding up order and not the date of sale.(v) The conclusions (ii) to (iv) shall be mutatis mutandis applicable where provisional liquidator has been appointed in respect of the debtor company.(vi) Where the winding up petition against the debtor company is pending but no order of winding up has been passed nor any provisional liquidator has been appointed in respect of such company at the time of order of sale by DRT and the properties of the debtor company have been sold in execution of the recovery certificate and proceeds of sale realized and full disbursement of the sale proceeds has been made to the concerned bank or financial institution, the subsequent event of the debtor company going into liquidation is no ground for reopening disbursement by the DRT.(vii) However, before full and final disbursement of sale proceeds, if the debtor company has gone into liquidation and a liquidator is appointed, disbursement of undisbursed proceeds by DRT can only be done after notice to the liquidator and after hearing him. In that situation if there is claim ofdues, the DRT has two options available with it. One, the bank or financial institution which made an application before DRT for recovery of debt from the debtor company may be paid the undisbursed amount against due debt as per the recovery certificate after securing an indemnity bond of restitution of the amount to the extent ofdues as may be finally determined by the liquidator of the debtor company and payable to workmen in the proportion set out in the illustration appended to Section 529(3)(c) of the Companies Act. The other, DRT may set apart tentatively portion of the undisbursed amount towardsdues in the ratio as per the illustration following Section 529(3)(c) and disburse the balance amount to the applicant bank or financial institution subject to an undertaking by such bank or financial institution to restitute the amount to the extentdues as may be finally determined by the liquidator, falls short of the amount which may be distributable to the workmen as per the above illustration. The amount so set apart may be disbursed to the liquidator towardsdues on ad hoc basis subject to adjustment on final determination of thedues by the liquidator.(viii) The first option must be exercised by DRT only in a situation where no application for distribution towardsdues against the debtor company has been made by the liquidator or the workmen before the DRT.(ix) Where the sale of security has been effected in execution of recovery certificate issued by the DRT under the 1993 Act, the distribution of sale proceeds has to be made by the DRT alone in accordance with Section 529A of the Companies Act and by no other forum or authority.(x) The workmen of the company in winding up acquire the standing of the secured creditors on and from the date of winding up order (or where provisional liquidator has been appointed, from the date of such appointment) and they become entitled to the distribution of sale proceeds in the ratio as explained in the illustration appended to Section 529(3)(c) of the Companies Act.(xi) Section 19(19) of the 1993 Act does not clothe DRT with jurisdiction to determine theclaim against the debtor company. The adjudication ofdues against the debtor company in liquidation has to be made by the liquidator. In other words, once the company is in winding up the only competent authority to determine thedues is the liquidator who obviously has to act under the supervision of the company court and by no other authority.(xii) Section 19 (19) is attracted only where a debtor company is in winding up or a provisional liquidator has been appointed in respect of such company. If the debtor company is not in liquidation or if in respect of such company no order of appointment of provisional liquidator has been made and merely winding up proceedings are pending, the question of distribution of sale proceeds among secured creditors in the manner prescribed in Section19(19) of the 1993 Act does not arise.For the above conclusions, we hold, as it must be held, that the claims of the workmen who claim to be entitled to payment pari passu have to be considered and adjudicated by the liquidator of the debtor company and not by the DRT. We answer the question accordingly. | 1 | 14,348 | 1,110 | ### 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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If the debtor company is not in liquidation nor any provisional liquidator has been appointed and merely winding up proceedings are pending, there is no question of distribution of sale proceeds among secured creditors in the manner prescribed in Section 19(19) of the 1993 Act.(ii) Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of their dues over the security of every secured creditor and this charge is pari passu with that of the secured creditor. Such statutory charge is to the extent of workmen’s portion in relation to the security held by the secured creditor of the debtor company.(iii) The above position is equally applicable where the assets of the debtor company have been sold in execution of the recovery certificate obtained by the bank or financial institution against the debtor company when it was not in liquidation but before the proceeds realized from such sale could be fully and finally disbursed, the company had gone into liquidation. In other words, pending final disbursement of the proceeds realized from the sale of security in execution of the recovery certificate issued by the debt recovery tribunal, if debtor company becomes company in winding up, Section 529A read with Section 529(1)(c) proviso come into operation and statutory charge is created in favour of workmen in respect of their dues over such proceeds.(iv) The relevant date for arriving at the ratio at which the sale proceeds are to be distributed amongst workmen and secured creditors of the debtor company is the date of the winding up order and not the date of sale.(v) The conclusions (ii) to (iv) shall be mutatis mutandis applicable where provisional liquidator has been appointed in respect of the debtor company.(vi) Where the winding up petition against the debtor company is pending but no order of winding up has been passed nor any provisional liquidator has been appointed in respect of such company at the time of order of sale by DRT and the properties of the debtor company have been sold in execution of the recovery certificate and proceeds of sale realized and full disbursement of the sale proceeds has been made to the concerned bank or financial institution, the subsequent event of the debtor company going into liquidation is no ground for reopening disbursement by the DRT.(vii) However, before full and final disbursement of sale proceeds, if the debtor company has gone into liquidation and a liquidator is appointed, disbursement of undisbursed proceeds by DRT can only be done after notice to the liquidator and after hearing him. In that situation if there is claim of workmen’s dues, the DRT has two options available with it. One, the bank or financial institution which made an application before DRT for recovery of debt from the debtor company may be paid the undisbursed amount against due debt as per the recovery certificate after securing an indemnity bond of restitution of the amount to the extent of workmen’s dues as may be finally determined by the liquidator of the debtor company and payable to workmen in the proportion set out in the illustration appended to Section 529(3)(c) of the Companies Act. The other, DRT may set apart tentatively portion of the undisbursed amount towards workmen’s dues in the ratio as per the illustration following Section 529(3)(c) and disburse the balance amount to the applicant bank or financial institution subject to an undertaking by such bank or financial institution to restitute the amount to the extent workmen’s dues as may be finally determined by the liquidator, falls short of the amount which may be distributable to the workmen as per the above illustration. The amount so set apart may be disbursed to the liquidator towards workmen’s dues on ad hoc basis subject to adjustment on final determination of the workmen’s dues by the liquidator.(viii) The first option must be exercised by DRT only in a situation where no application for distribution towards workmen’s dues against the debtor company has been made by the liquidator or the workmen before the DRT.(ix) Where the sale of security has been effected in execution of recovery certificate issued by the DRT under the 1993 Act, the distribution of sale proceeds has to be made by the DRT alone in accordance with Section 529A of the Companies Act and by no other forum or authority.(x) The workmen of the company in winding up acquire the standing of the secured creditors on and from the date of winding up order (or where provisional liquidator has been appointed, from the date of such appointment) and they become entitled to the distribution of sale proceeds in the ratio as explained in the illustration appended to Section 529(3)(c) of the Companies Act.(xi) Section 19(19) of the 1993 Act does not clothe DRT with jurisdiction to determine the workmen’s claim against the debtor company. The adjudication of workmen’s dues against the debtor company in liquidation has to be made by the liquidator. In other words, once the company is in winding up the only competent authority to determine the workmen’s dues is the liquidator who obviously has to act under the supervision of the company court and by no other authority.(xii) Section 19 (19) is attracted only where a debtor company is in winding up or a provisional liquidator has been appointed in respect of such company. If the debtor company is not in liquidation or if in respect of such company no order of appointment of provisional liquidator has been made and merely winding up proceedings are pending, the question of distribution of sale proceeds among secured creditors in the manner prescribed in Section19(19) of the 1993 Act does not arise. 73. For the above conclusions, we hold, as it must be held, that the claims of the workmen who claim to be entitled to payment pari passu have to be considered and adjudicated by the liquidator of the debtor company and not by the DRT. We answer the question accordingly.
### Response:
1
### Explanation:
72. In light of the above discussion, we sum up our conclusionsIf the debtor company is not in liquidation nor any provisional liquidator has been appointed and merely winding up proceedings are pending, there is no question of distribution of sale proceeds among secured creditors in the manner prescribed in Section 19(19) of the 1993 Act.(ii) Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of their dues over the security of every secured creditor and this charge is pari passu with that of the secured creditor. Such statutory charge is to the extent ofportion in relation to the security held by the secured creditor of the debtor company.(iii) The above position is equally applicable where the assets of the debtor company have been sold in execution of the recovery certificate obtained by the bank or financial institution against the debtor company when it was not in liquidation but before the proceeds realized from such sale could be fully and finally disbursed, the company had gone into liquidation. In other words, pending final disbursement of the proceeds realized from the sale of security in execution of the recovery certificate issued by the debt recovery tribunal, if debtor company becomes company in winding up, Section 529A read with Section 529(1)(c) proviso come into operation and statutory charge is created in favour of workmen in respect of their dues over such proceeds.(iv) The relevant date for arriving at the ratio at which the sale proceeds are to be distributed amongst workmen and secured creditors of the debtor company is the date of the winding up order and not the date of sale.(v) The conclusions (ii) to (iv) shall be mutatis mutandis applicable where provisional liquidator has been appointed in respect of the debtor company.(vi) Where the winding up petition against the debtor company is pending but no order of winding up has been passed nor any provisional liquidator has been appointed in respect of such company at the time of order of sale by DRT and the properties of the debtor company have been sold in execution of the recovery certificate and proceeds of sale realized and full disbursement of the sale proceeds has been made to the concerned bank or financial institution, the subsequent event of the debtor company going into liquidation is no ground for reopening disbursement by the DRT.(vii) However, before full and final disbursement of sale proceeds, if the debtor company has gone into liquidation and a liquidator is appointed, disbursement of undisbursed proceeds by DRT can only be done after notice to the liquidator and after hearing him. In that situation if there is claim ofdues, the DRT has two options available with it. One, the bank or financial institution which made an application before DRT for recovery of debt from the debtor company may be paid the undisbursed amount against due debt as per the recovery certificate after securing an indemnity bond of restitution of the amount to the extent ofdues as may be finally determined by the liquidator of the debtor company and payable to workmen in the proportion set out in the illustration appended to Section 529(3)(c) of the Companies Act. The other, DRT may set apart tentatively portion of the undisbursed amount towardsdues in the ratio as per the illustration following Section 529(3)(c) and disburse the balance amount to the applicant bank or financial institution subject to an undertaking by such bank or financial institution to restitute the amount to the extentdues as may be finally determined by the liquidator, falls short of the amount which may be distributable to the workmen as per the above illustration. The amount so set apart may be disbursed to the liquidator towardsdues on ad hoc basis subject to adjustment on final determination of thedues by the liquidator.(viii) The first option must be exercised by DRT only in a situation where no application for distribution towardsdues against the debtor company has been made by the liquidator or the workmen before the DRT.(ix) Where the sale of security has been effected in execution of recovery certificate issued by the DRT under the 1993 Act, the distribution of sale proceeds has to be made by the DRT alone in accordance with Section 529A of the Companies Act and by no other forum or authority.(x) The workmen of the company in winding up acquire the standing of the secured creditors on and from the date of winding up order (or where provisional liquidator has been appointed, from the date of such appointment) and they become entitled to the distribution of sale proceeds in the ratio as explained in the illustration appended to Section 529(3)(c) of the Companies Act.(xi) Section 19(19) of the 1993 Act does not clothe DRT with jurisdiction to determine theclaim against the debtor company. The adjudication ofdues against the debtor company in liquidation has to be made by the liquidator. In other words, once the company is in winding up the only competent authority to determine thedues is the liquidator who obviously has to act under the supervision of the company court and by no other authority.(xii) Section 19 (19) is attracted only where a debtor company is in winding up or a provisional liquidator has been appointed in respect of such company. If the debtor company is not in liquidation or if in respect of such company no order of appointment of provisional liquidator has been made and merely winding up proceedings are pending, the question of distribution of sale proceeds among secured creditors in the manner prescribed in Section19(19) of the 1993 Act does not arise.For the above conclusions, we hold, as it must be held, that the claims of the workmen who claim to be entitled to payment pari passu have to be considered and adjudicated by the liquidator of the debtor company and not by the DRT. We answer the question accordingly.
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Ramachandra Pillai Vs. Arunschalathammal and Others | SHAH, J. 1. One Arumugam had three sons, - Thanu, Shanmugam and Sankaran, and a daughter Ramlakshmi. Shanmugam died in 1942 and his estate devolved upon his daughter Chidambarathammal. By virtue of Section 14 of the Hindu Succession Act, she acquired, when that Act was brought into force an absolute interest in the interest in the estate inherited by her from Shanmugam. Chidambarathammal died in February, 1957, when she was a minor and unmarried. Arunachalathammal, one of the daughters of Ramlakshmi Ammal, sister of Shanmugam, commenced an action in the Court of the District Munsiff for partition and Separate possession of her 1/24th share out of the estate of Chadambarathammal. The claim was resisted by the sons of Thanu and Sankaran-brothers of Shanmugam. The Trial Court decreed the claim and that decree was confirmed in second appeal to the High Court of Madras. 2. In this appeal Mr. Chagla, for the appellant, contends that Arunachalathammal was under the Hindu Succession Act not entitled to a share in the estate of Chadambarathammal. The relevant provisions of the Hindu Succession Act, 1956 may by noticed. Section 16(1) of the Act provides : "The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 - (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother." By Section 16 it is provided : "The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely :Rule 1. Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2. ......... Rule 3. The devolution of the property of the intestates on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands case may be, and such person had died intestate in respect thereof immediately after the intestates death." Section 8 of the Act provides : "The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heirs of Class I, then upon the relatives specified in Class II of the Schedule; (c)........... (d)............." 3. The claimants to the estate of Chidambarathammal fall within clause (4) in sub-section (1) of Section 15, and by virtue of Section 16, Rules 3 the devolution of the property will be in the order and according to the rules as would have applied as if the property were of Shanmugam and he had died immediately after Chidambarathammal. The claimants to her estate fall within Class II, Item IV of the Schedule to the Act - (1) Mothers son (2) Sisters son (3) Brothers daughter, (4) Sisters daughter. 4. It was urged by Mr. Chagla that amongst the heirs specified in Item IV of Class II the heirs in sub-item (1) take the property in preference to heirs mentioned in item (2), and heirs mentioned in item (2), in preference to heirs mentioned in item (3), and so on. But we have held in Satya Charan Dutta v. Urmilla Sundari Desai and Others, Civil Appeal No. 1356 of 1966, decided on September 9, 1969 that all the heirs mentioned in an item of Class II of the Schedule take the property simultaneously and heirs specified earlier in the same sub-item do not exclude those later in the sequence. The descendants of the brothers of Shanmugam and of Ramalakshmi, his sister, therefore take the estate in equal shares. 5. Mr. Chagla raised an alternative contention that the estate in the possession of the deceased must be deemed to have the same character as it had when Shanmugam died and thereafter the provisions of Section 6 of the Act applied in determining the rights of the claimants thereto. There is no substance in this contention. Section 16, Rule 3 on which reliance is placed by counsel merely designates the heirs, it has no relevance in determining the nature of the property. There is nothing in Rule 3 to support the contention that the estate of a person dying intestate is to be restored to the character which it had when it devolved upon the propositus : the rule specifies a method of determining the preferential heirs, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. It is common ground that the estate upon Chidambarathammal on the death of Shanmugam was property which he received on partition, and Section 6 of the Act has no application to property received by a member of a joint family on partition. Again Section 6 in terms applies by to those cases where a Hindu dies after the commencement of the Act having at the time of his death an interest in a Mirtakshara coparcenary property. In our view the contention that the property must be deemed to be restored to the character of interest in coparcenary property and devolves under Section 6 is without substance. | 0[ds]5. Mr. Chagla raised an alternative contention that the estate in the possession of the deceased must be deemed to have the same character as it had when Shanmugam died and thereafter the provisions of Section 6 of the Act applied in determining the rights of the claimants thereto.There is no substance in this contention. Section 16, Rule 3 on which reliance is placed by counsel merely designates the heirs, it has no relevance in determining the nature of the property. There is nothing in Rule 3 to support the contention that the estate of a person dying intestate is to be restored to the character which it had when it devolved upon the propositus : the rule specifies a method of determining the preferential heirs, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. It is common ground that the estate upon Chidambarathammal on the death of Shanmugam was property which he received on partition, and Section 6 of the Act has no application to property received by a member of a joint family on partition. Again Section 6 in terms applies by to those cases where a Hindu dies after the commencement of the Act having at the time of his death an interest in a Mirtakshara coparcenary property. In our view the contention that the property must be deemed to be restored to the character of interest in coparcenary property and devolves under Section 6 is without substance. | 0 | 1,123 | 291 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
SHAH, J. 1. One Arumugam had three sons, - Thanu, Shanmugam and Sankaran, and a daughter Ramlakshmi. Shanmugam died in 1942 and his estate devolved upon his daughter Chidambarathammal. By virtue of Section 14 of the Hindu Succession Act, she acquired, when that Act was brought into force an absolute interest in the interest in the estate inherited by her from Shanmugam. Chidambarathammal died in February, 1957, when she was a minor and unmarried. Arunachalathammal, one of the daughters of Ramlakshmi Ammal, sister of Shanmugam, commenced an action in the Court of the District Munsiff for partition and Separate possession of her 1/24th share out of the estate of Chadambarathammal. The claim was resisted by the sons of Thanu and Sankaran-brothers of Shanmugam. The Trial Court decreed the claim and that decree was confirmed in second appeal to the High Court of Madras. 2. In this appeal Mr. Chagla, for the appellant, contends that Arunachalathammal was under the Hindu Succession Act not entitled to a share in the estate of Chadambarathammal. The relevant provisions of the Hindu Succession Act, 1956 may by noticed. Section 16(1) of the Act provides : "The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 - (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother." By Section 16 it is provided : "The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely :Rule 1. Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2. ......... Rule 3. The devolution of the property of the intestates on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands case may be, and such person had died intestate in respect thereof immediately after the intestates death." Section 8 of the Act provides : "The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heirs of Class I, then upon the relatives specified in Class II of the Schedule; (c)........... (d)............." 3. The claimants to the estate of Chidambarathammal fall within clause (4) in sub-section (1) of Section 15, and by virtue of Section 16, Rules 3 the devolution of the property will be in the order and according to the rules as would have applied as if the property were of Shanmugam and he had died immediately after Chidambarathammal. The claimants to her estate fall within Class II, Item IV of the Schedule to the Act - (1) Mothers son (2) Sisters son (3) Brothers daughter, (4) Sisters daughter. 4. It was urged by Mr. Chagla that amongst the heirs specified in Item IV of Class II the heirs in sub-item (1) take the property in preference to heirs mentioned in item (2), and heirs mentioned in item (2), in preference to heirs mentioned in item (3), and so on. But we have held in Satya Charan Dutta v. Urmilla Sundari Desai and Others, Civil Appeal No. 1356 of 1966, decided on September 9, 1969 that all the heirs mentioned in an item of Class II of the Schedule take the property simultaneously and heirs specified earlier in the same sub-item do not exclude those later in the sequence. The descendants of the brothers of Shanmugam and of Ramalakshmi, his sister, therefore take the estate in equal shares. 5. Mr. Chagla raised an alternative contention that the estate in the possession of the deceased must be deemed to have the same character as it had when Shanmugam died and thereafter the provisions of Section 6 of the Act applied in determining the rights of the claimants thereto. There is no substance in this contention. Section 16, Rule 3 on which reliance is placed by counsel merely designates the heirs, it has no relevance in determining the nature of the property. There is nothing in Rule 3 to support the contention that the estate of a person dying intestate is to be restored to the character which it had when it devolved upon the propositus : the rule specifies a method of determining the preferential heirs, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. It is common ground that the estate upon Chidambarathammal on the death of Shanmugam was property which he received on partition, and Section 6 of the Act has no application to property received by a member of a joint family on partition. Again Section 6 in terms applies by to those cases where a Hindu dies after the commencement of the Act having at the time of his death an interest in a Mirtakshara coparcenary property. In our view the contention that the property must be deemed to be restored to the character of interest in coparcenary property and devolves under Section 6 is without substance.
### Response:
0
### Explanation:
5. Mr. Chagla raised an alternative contention that the estate in the possession of the deceased must be deemed to have the same character as it had when Shanmugam died and thereafter the provisions of Section 6 of the Act applied in determining the rights of the claimants thereto.There is no substance in this contention. Section 16, Rule 3 on which reliance is placed by counsel merely designates the heirs, it has no relevance in determining the nature of the property. There is nothing in Rule 3 to support the contention that the estate of a person dying intestate is to be restored to the character which it had when it devolved upon the propositus : the rule specifies a method of determining the preferential heirs, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. It is common ground that the estate upon Chidambarathammal on the death of Shanmugam was property which he received on partition, and Section 6 of the Act has no application to property received by a member of a joint family on partition. Again Section 6 in terms applies by to those cases where a Hindu dies after the commencement of the Act having at the time of his death an interest in a Mirtakshara coparcenary property. In our view the contention that the property must be deemed to be restored to the character of interest in coparcenary property and devolves under Section 6 is without substance.
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Rakesh Kumar Vs. United India Insurance Company Ltd. And Ors. Etc. Etc | 97/2008, Rs. 4,56,8000/- in MACT Case No.109 of 2008 and Rs. 51,448/- in MACT Case No.28 of 2009. It was, inter alia, held that the Insurance Company is liable to pay compensation as the driver of the offending vehicle was holding a valid and effective driving license. It was also held that the Insurance Company failed to adduce any evidence to prove to the contrary.8. Challenging the said order, the Insurance Company filed FAO Nos. 6935, 6937 and 6977/2011 and the claimants filed FAO Nos. 906 and 907 of 2012 seeking enhancement of the compensation.9. By impugned judgment dated 22.05.2014, the High Court reversed the award of the Tribunal in part in the appeals filed by the Insurance Company and held that since the driver of the offending vehicle did not possess a valid license to drive the vehicle because he failed to file the original one and filed its photocopy, the Insurance Company cannot be held liable to pay the awarded sum. In other words, the High Court held that the driving license was not properly proved and hence it cannot be held that the driver was having a valid driving license. In this view of the matter, the Insurance Company was exonerated from the liability from paying the compensation. However, the Insurance Company was directed to pay the awarded sum to the claimants first and then to recover the awarded sum from the owner and driver of the offending vehicle on the principle of `pay and recover.10. Challenging the said order, the owner has filed these appeals by way of special leave before this Court.11. A short question that arises for consideration in these appeals is whether the High Court was justified in exonerating the Insurance Company from the liability on the ground that the driver of the offending vehicle did not possess valid license?12. Heard Mr. A. Tewari, learned counsel for the appellant and Mr. A.K. De, learned counsel for respondent No.1. 13. Submission of Mr. A. Tewari, learned counsel for the appellant, while attacking the impugned order was essentially two-fold.14. In the first place, learned counsel urged that the High Court erred in exonerating the Insurance Company from the liability arising out of the accident. He submitted that the Tribunal having rightly held that the Insurance Company was liable to pay the compensation to the claimants as the driver of offending vehicle was having a valid driving license at the time of accident and that the vehicle in question was admittedly insured with the insurance company, there was no justifiable reason for the High Court to have reversed the finding of the Tribunal and exonerated the Insurance Company from the liability.15. In the second place, learned counsel urged that the High Court failed to see that the driver of the offending vehicle had filed the photo copy of his driving license, which was also proved (Exhibit-R 1) by him without there being any objection of the Insurance Company. Learned counsel further pointed out that apart from this, the Insurance Company failed to adduce any evidence to prove that the license held by the driver was fake or not genuine etc.16. Learned counsel urged that the finding of the High Court is, therefore, not legally sustainable and hence deserves to be set aside and that of the Tribunal on this issue is liable to be restored. 17. In reply, learned counsel for respondent No.1 (Insurance Company) supported the reasoning of the High Court and contended that the impugned order should be upheld calling no interference therein.18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions urged by the learned counsel for the appellant as in our opinion, they deserve acceptance. 19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the following reasons: 20. First, the driver of the offending vehicle (N.A.-2) proved his driving license (Exhibit-R1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had no right to raise any objection about the admissibility and manner of proving of the license at a later stage (See Oriental Insurance Company Ltd. v. Premlata Shukla & Ors., (2007) 13 SCC 476 ) and lastly, the Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason. 21. In the light of foregoing reasons, we are of the considered opinion that the High court was not right in reversing the finding of the Tribunal. Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (Exhibit-R1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court.23. In view of foregoing discussion, the | 1[ds]19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the followingare of the considered opinion that the High court was not right in reversing the finding of the Tribunal. Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (Exhibit-R1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court. | 1 | 1,689 | 201 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
97/2008, Rs. 4,56,8000/- in MACT Case No.109 of 2008 and Rs. 51,448/- in MACT Case No.28 of 2009. It was, inter alia, held that the Insurance Company is liable to pay compensation as the driver of the offending vehicle was holding a valid and effective driving license. It was also held that the Insurance Company failed to adduce any evidence to prove to the contrary.8. Challenging the said order, the Insurance Company filed FAO Nos. 6935, 6937 and 6977/2011 and the claimants filed FAO Nos. 906 and 907 of 2012 seeking enhancement of the compensation.9. By impugned judgment dated 22.05.2014, the High Court reversed the award of the Tribunal in part in the appeals filed by the Insurance Company and held that since the driver of the offending vehicle did not possess a valid license to drive the vehicle because he failed to file the original one and filed its photocopy, the Insurance Company cannot be held liable to pay the awarded sum. In other words, the High Court held that the driving license was not properly proved and hence it cannot be held that the driver was having a valid driving license. In this view of the matter, the Insurance Company was exonerated from the liability from paying the compensation. However, the Insurance Company was directed to pay the awarded sum to the claimants first and then to recover the awarded sum from the owner and driver of the offending vehicle on the principle of `pay and recover.10. Challenging the said order, the owner has filed these appeals by way of special leave before this Court.11. A short question that arises for consideration in these appeals is whether the High Court was justified in exonerating the Insurance Company from the liability on the ground that the driver of the offending vehicle did not possess valid license?12. Heard Mr. A. Tewari, learned counsel for the appellant and Mr. A.K. De, learned counsel for respondent No.1. 13. Submission of Mr. A. Tewari, learned counsel for the appellant, while attacking the impugned order was essentially two-fold.14. In the first place, learned counsel urged that the High Court erred in exonerating the Insurance Company from the liability arising out of the accident. He submitted that the Tribunal having rightly held that the Insurance Company was liable to pay the compensation to the claimants as the driver of offending vehicle was having a valid driving license at the time of accident and that the vehicle in question was admittedly insured with the insurance company, there was no justifiable reason for the High Court to have reversed the finding of the Tribunal and exonerated the Insurance Company from the liability.15. In the second place, learned counsel urged that the High Court failed to see that the driver of the offending vehicle had filed the photo copy of his driving license, which was also proved (Exhibit-R 1) by him without there being any objection of the Insurance Company. Learned counsel further pointed out that apart from this, the Insurance Company failed to adduce any evidence to prove that the license held by the driver was fake or not genuine etc.16. Learned counsel urged that the finding of the High Court is, therefore, not legally sustainable and hence deserves to be set aside and that of the Tribunal on this issue is liable to be restored. 17. In reply, learned counsel for respondent No.1 (Insurance Company) supported the reasoning of the High Court and contended that the impugned order should be upheld calling no interference therein.18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions urged by the learned counsel for the appellant as in our opinion, they deserve acceptance. 19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the following reasons: 20. First, the driver of the offending vehicle (N.A.-2) proved his driving license (Exhibit-R1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had no right to raise any objection about the admissibility and manner of proving of the license at a later stage (See Oriental Insurance Company Ltd. v. Premlata Shukla & Ors., (2007) 13 SCC 476 ) and lastly, the Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason. 21. In the light of foregoing reasons, we are of the considered opinion that the High court was not right in reversing the finding of the Tribunal. Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (Exhibit-R1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court.23. In view of foregoing discussion, the
### Response:
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### Explanation:
19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the followingare of the considered opinion that the High court was not right in reversing the finding of the Tribunal. Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (Exhibit-R1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court.
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Farid Ahmed Abdul Samad & Another Vs. Municipal Corporation of the City of Ahmedabad & Another | that provision for appeal is not a complete substitute for a personal hearing which is provided for under section 5A of the Land Acquisition Act. This will be evident from a perusal of clause 3 of Schedule B itself. The character of the appeal contemplated under clause 3(ii) of Schedule B is only with regard to the examination of the following aspects:--"(1 ) whether the order or approval of the plan is within the powers of the Bombay Act, and(2) whether the interests of the appellant have been substantially prejudiced by any requirement of this Act not having been complied with."13. The appeal is confined under clause 3 of Schedule B to the examination of only the twin aspects referred to above. There is no provision for entertainment of any other relevant objection to the acquisition of land. For example a person whose land is acquired may object to the suitability of the land for the particular purpose acquired. He may again show that he will be at an equal disadvantage if his land and house have to be acquired in order to provide accommodation for the poorer people as he himself belongs to the same class of the indigent. He may further show that there is a good alternative land available and can be acquired without causing inconvenience to the occupants of the houses whose lands and houses are sought to be acquired. There may be other relevant objections which a person may be entitled to take before the Commissioner when the whole matter is at large. The Commissioner will be in a better position to examine those objections and consider their weight from all aspects and may even visit the locality before submitting his report to the Standing Committee with his suggestions. For this purpose also a personal hearing is necessary. The appeal court under the Schedule B to the Bombay Act, on the other hand, is not required under clause 3 to entertain all kinds of objections and it may eve n refuse to consider the objections mentioned earlier in view of the truncated scope of the hearing under clause 3(ii) as noted above. We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.Mr. Shroff further submits that under the Appendix I, inter alia, section 17(4) of the Land Acquisition Act is made applicale in an acquisition proceeding under the Bombay Act. It is, therefore, submitted that under section 284N, sub-section (4) any acqui sition under the Bombay Act is treated as an acquisition under section 17 ( 1 ) of the Land Acquisition Act and since section 17(4) of the Land Acquisition Act is also brought in under the said Appendix, section 5A of the Land Acquisition Act, by necessary implication, should be held as excluded from the purview of the Bombay Act. We are unable to accept this submission. Even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply. There is no automatic exclusion of section 5A even under the Land Acquisition Act. That being the position there is no substance in the contention that because of subsection (4) of section 284N, section 5A should be held inapplicable in the case of an acquisition proceeding under the Bombay Act.14. We are clearly of opinion that section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.We should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government. If the order is, at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the State Government.15. Besides, hearing of objections under section 5A of the Land Acquisition Act to be given by the Commissioner under the Bombay Act cannot be replaced by a kind of appeal hearing by the City Civil Judge. The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal. (See Shri Mandir Sita Ramji v. Lt. Governor of Delhi & Ors.(1)].16. Beneficial schemes under welfare legislation have to be executed in accordance with law which creates the schemes. The end does not always justify the means and it is no answer that the object of the scheme is such that it justifies the implementer of the law to be absolutely oblivious of the manner of enforcement even though t he manner is an integral part of the scheme, imposing under the law, restrictions on the rights of individuals. Beneficial laws have to be simple and self-contained. To introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case in hand.17. It is refreshing that this Court disposed of this matter within about four months of granting of special leave.18. | 1[ds]We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.Mr. Shroff further submits that under the Appendix I, inter alia, section 17(4) of the Land Acquisition Act is made applicale in an acquisition proceeding under the Bombay Act. It is, therefore, submitted that under section 284N, sub-section (4) any acqui sition under the Bombay Act is treated as an acquisition under section 17 ( 1 ) of the Land Acquisition Act and since section 17(4) of the Land Acquisition Act is also brought in under the said Appendix, section 5A of the Land Acquisition Act, by necessary implication, should be held as excluded from the purview of the Bombay Act. We are unable to accept this submission. Even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply. There is no automatic exclusion of section 5A even under the Land Acquisition Act. That being the position there is no substance in the contention that because of subsection (4) of section 284N, section 5A should be held inapplicable in the case of an acquisition proceeding under the Bombayare clearly of opinion that section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.We should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government. If the order is, at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the Statehearing of objections under section 5A of the Land Acquisition Act to be given by the Commissioner under the Bombay Act cannot be replaced by a kind of appeal hearing by the City Civil Judge. The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal. (See Shri Mandir Sita Ramji v. Lt. Governor of Delhi &schemes under welfare legislation have to be executed in accordance with law which creates the schemes. The end does not always justify the means and it is no answer that the object of the scheme is such that it justifies the implementer of the law to be absolutely oblivious of the manner of enforcement even though t he manner is an integral part of the scheme, imposing under the law, restrictions on the rights of individuals. Beneficial laws have to be simple and self-contained. To introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case inis refreshing that this Court disposed of this matter within about four months of granting of special leave. | 1 | 3,543 | 688 | ### Instruction:
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that provision for appeal is not a complete substitute for a personal hearing which is provided for under section 5A of the Land Acquisition Act. This will be evident from a perusal of clause 3 of Schedule B itself. The character of the appeal contemplated under clause 3(ii) of Schedule B is only with regard to the examination of the following aspects:--"(1 ) whether the order or approval of the plan is within the powers of the Bombay Act, and(2) whether the interests of the appellant have been substantially prejudiced by any requirement of this Act not having been complied with."13. The appeal is confined under clause 3 of Schedule B to the examination of only the twin aspects referred to above. There is no provision for entertainment of any other relevant objection to the acquisition of land. For example a person whose land is acquired may object to the suitability of the land for the particular purpose acquired. He may again show that he will be at an equal disadvantage if his land and house have to be acquired in order to provide accommodation for the poorer people as he himself belongs to the same class of the indigent. He may further show that there is a good alternative land available and can be acquired without causing inconvenience to the occupants of the houses whose lands and houses are sought to be acquired. There may be other relevant objections which a person may be entitled to take before the Commissioner when the whole matter is at large. The Commissioner will be in a better position to examine those objections and consider their weight from all aspects and may even visit the locality before submitting his report to the Standing Committee with his suggestions. For this purpose also a personal hearing is necessary. The appeal court under the Schedule B to the Bombay Act, on the other hand, is not required under clause 3 to entertain all kinds of objections and it may eve n refuse to consider the objections mentioned earlier in view of the truncated scope of the hearing under clause 3(ii) as noted above. We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.Mr. Shroff further submits that under the Appendix I, inter alia, section 17(4) of the Land Acquisition Act is made applicale in an acquisition proceeding under the Bombay Act. It is, therefore, submitted that under section 284N, sub-section (4) any acqui sition under the Bombay Act is treated as an acquisition under section 17 ( 1 ) of the Land Acquisition Act and since section 17(4) of the Land Acquisition Act is also brought in under the said Appendix, section 5A of the Land Acquisition Act, by necessary implication, should be held as excluded from the purview of the Bombay Act. We are unable to accept this submission. Even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply. There is no automatic exclusion of section 5A even under the Land Acquisition Act. That being the position there is no substance in the contention that because of subsection (4) of section 284N, section 5A should be held inapplicable in the case of an acquisition proceeding under the Bombay Act.14. We are clearly of opinion that section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.We should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government. If the order is, at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the State Government.15. Besides, hearing of objections under section 5A of the Land Acquisition Act to be given by the Commissioner under the Bombay Act cannot be replaced by a kind of appeal hearing by the City Civil Judge. The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal. (See Shri Mandir Sita Ramji v. Lt. Governor of Delhi & Ors.(1)].16. Beneficial schemes under welfare legislation have to be executed in accordance with law which creates the schemes. The end does not always justify the means and it is no answer that the object of the scheme is such that it justifies the implementer of the law to be absolutely oblivious of the manner of enforcement even though t he manner is an integral part of the scheme, imposing under the law, restrictions on the rights of individuals. Beneficial laws have to be simple and self-contained. To introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case in hand.17. It is refreshing that this Court disposed of this matter within about four months of granting of special leave.18.
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We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.Mr. Shroff further submits that under the Appendix I, inter alia, section 17(4) of the Land Acquisition Act is made applicale in an acquisition proceeding under the Bombay Act. It is, therefore, submitted that under section 284N, sub-section (4) any acqui sition under the Bombay Act is treated as an acquisition under section 17 ( 1 ) of the Land Acquisition Act and since section 17(4) of the Land Acquisition Act is also brought in under the said Appendix, section 5A of the Land Acquisition Act, by necessary implication, should be held as excluded from the purview of the Bombay Act. We are unable to accept this submission. Even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply. There is no automatic exclusion of section 5A even under the Land Acquisition Act. That being the position there is no substance in the contention that because of subsection (4) of section 284N, section 5A should be held inapplicable in the case of an acquisition proceeding under the Bombayare clearly of opinion that section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.We should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government. If the order is, at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the Statehearing of objections under section 5A of the Land Acquisition Act to be given by the Commissioner under the Bombay Act cannot be replaced by a kind of appeal hearing by the City Civil Judge. The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal. (See Shri Mandir Sita Ramji v. Lt. Governor of Delhi &schemes under welfare legislation have to be executed in accordance with law which creates the schemes. The end does not always justify the means and it is no answer that the object of the scheme is such that it justifies the implementer of the law to be absolutely oblivious of the manner of enforcement even though t he manner is an integral part of the scheme, imposing under the law, restrictions on the rights of individuals. Beneficial laws have to be simple and self-contained. To introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case inis refreshing that this Court disposed of this matter within about four months of granting of special leave.
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Salonah Tea Company Ltd Vs. Superintendent Of Taxes Nowgong & Ors. Etc | in 1973 (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court), that the appellant realised the right to claim the relief of refund as a consequential relief, get the assessment set aside and the assessment was set aside by the very order itself in this case. That right has been granted by the High Court and the High Court has not refused the setting aside on the ground of delay. It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by the High Court by the judgment in this case which claimed also the consequential relief, that relief must automatically follow and the High Court was wrong in taking the view that a triable issue of limitation arises in this case. In the absence of any averment to the contrary, the averment of the appellant in the petition that they came to know only after the Loong Soongs case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) must be accepted. The High Court was wrong in contending that they should have been more diligent. After all, the discretion must be fair and equitable. In the facts of this case, we are of the opinion that the High Court was in error in the approach it took. We, therefore, set aside the judgment and order of the High Court and direct refund of the tax illegally realised by the respondent. 17. The appeals are allowed. We set aside the judgment and order to the extent that it refused refund of the tax illegally realised. In the facts of this case, the parties will pay and bear their own costs. S. RANGANATHAN J.- 18. I agree with the order proposed by my learned brother but would like to add a word of reservationIn view of the judgment of this court in Superintendent of Taxes v. Onkarmal Nathmal Trust [1975] Supp SCR 365, there can be no doubt that the assessments on the appellants were illegal and that the taxes demanded on the basis thereof had been collected without the authority of law from the appellants. The appellants contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof. It is difficult to see how the High Court could have allowed the appellants prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes. The appeals have, therefore, to be allowed. 19. Counsel for the respondents, however, places strong reliance on the following observations of a Constitution Bench of this court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450 ; [1964] 6 SCR 261 " Though the provisions of the Limitation Act do not, as such, apply to the granting of relief under article 226, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 could be measured ......... Where the delay is more than that period, it will almost always be proper for the court to hold that it is unreasonable." 20. He also relies on Cawasji and Co. v. State of Mysore [1975] 2 SCR 511 and draws our attention to the decision in Vallabh Glass Works v. Union of India [1984] 3 SCR 180 , where the claim for refund in respect of period beyond three years was rejected. He contends, on the strength of the above decisions, that the High Court rightly rejected the appellants claim for refund. 21. On the other hand, it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists. Counsel refers in this context to Venkateswaran v. Ramchand [1962] 1 SCR 753 , Chandra Bhushan v. Deputy Director of Consolidation [1967] 2 SCR 286 , Trilokchand Motichand v. Munshi, Commissioner of Sales Tax [1970] 25 STC 289 (SC); [1969] 2 SCR 824 , Ramachandra Shankar Deodhar v. State of Maharashtra [1974] 2 SCR 216 , Joginder Nath v. Union of India [1975] 2 SCR 553 , Shiv Shanker Dal Mills v. State of Haryana [1980] SCR 1170 and State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251 , and contends that these decisions have qualified the observations of Das Gupta J. in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261As pointed out by my learned brother, in the present case, the appellants averment that they realised their mistake only when they came to know about the decision in Loong Soong Tea Estates case in July, 1973 (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) stands uncontroverted. There is nothing on record either to show that the appellants had realised their mistake even earlier, at about the time when the writ petition in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) was filed or at the time when the earlier decision of 1966 referred to in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) judgment was rendered. On this finding of fact, the writ petitions filed by the appellants in November, 1973, were filed within the period of limitation prescribed in article 113 read with section 23 of the Limitation Act, 1963. Thus, the petitions were within time even by the test enunciated in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261. 22. | 1[ds]It appears thus that the High Court was in error in coining to the conclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter, the taxes were paid in 1968. Therefore, the claim in November, 1973, was belated. We are unable to agree with this conclusion. As mentioned hereinbefore, the question that arises in this case is whether the court should direct refund of the amount in question. Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as consequential relief after striking down of an order of assessment, etc. Normally speaking, in a society governed by rule of law, taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law, it follows that taxes collected without the authority of law as in this case from a citizen should be refunded, because no State has the right to receive or to retain taxes or monies realised from citizens without the authority ofHigh Court, in the instant case, after analysing the various decisions came to the conclusion that where a petitioner approached the High Court with the sole prayer of claiming refund of money by a writ of mandamus, the same was normally not granted but where the refund was prayed for as a consequential relief, the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under article 226 of the Constitution, the court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to the respondent or to any third party. In is true that in some cases the period of three years is normally taken as period beyond which the court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case. In this case, however, the High Court refused to grant the relief on the ground that when the section was declared ultra vires originally, that was the time when refund should have been claimed. But it appears to us, it is only when Loong Soongs case (Civil Rule No. 1005 of 1969, decided on July 10, 1973-Gauhati High Court) was decided by the High Court in 1973 that the appellant became aware of his crystal clear right of having the assessment declared ultra vires and in that view of the matter, in October, 1973, -after the judgment was delivered in July, 1973, the appellant came to know that there was a mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month thereafter in November, 1973, the present petition was filed. There was no unexplained delay. There was no fact indicated to the High Court from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else. On the other hand, refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. We are, therefore, of the view that the view of the High Court in this matter cannot be sustainedChandra Bhushan v. Deputy Director of Consolidation, U.P. (Regional) [1967] 2 SCR 286 , was a case where this court observed that the High Court erred in exalting a rule of practice into a rule of limitation and rejecting the petition of the appellant for refund without considering whether the appellant was guilty of laches or undue delay. Shah J., delivering the judgment of the court, observed that the primary question in each case is whether the applicant had been guilty of laches or unduethat view of the matter, in the facts of this case, we are of the opinion that the money was refundable to the appellant. The appellant had proceeded diligently. There is nothing to indicate that had the appellant been more diligent, the appellant could have discovered the constitutional inhibition in 1966. The position is not clear even if there is any triable issue. The position becomes clearer only after the decision in Loong Soongs case (Civil Rule No. 1005 of 1969, decided on July 10, 1973-Gauhati High Court) as mentionedattention was drawn on behalf of the respondents that under section 16 of the Act, an appeal lay in the prescribed manner within thirty days from the date of service of any order of assessment but the challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act, because the right to appeal being a creature of the Act, if the Act is ultra vires, that right would not enure to the benefit of theright has been granted by the High Court and the High Court has not refused the setting aside on the ground of delay. It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by the High Court by the judgment in this case which claimed also the consequential relief, that relief must automatically follow and the High Court was wrong in taking the view that a triable issue of limitation arises in this case. In the absence of any averment to the contrary, the averment of the appellant in the petition that they came to know only after the Loong Soongs case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) must be accepted. The High Court was wrong in contending that they should have been more diligent. After all, the discretion must be fair and equitable. In the facts of this case, we are of the opinion that the High Court was in error in the approach it took. We, therefore, set aside the judgment and order of the High Court and direct refund of the tax illegally realised by theappeals are allowed. We set aside the judgment and order to the extent that it refused refund of the tax illegally realised. In the facts of this case, the parties will pay and bear their own8. I agree with the order proposed by my learned brother but would like to add a word of reservationIn view of the judgment of this court in Superintendent of Taxes v. Onkarmal Nathmal Trust [1975] Supp SCR 365, there can be no doubt that the assessments on the appellants were illegal and that the taxes demanded on the basis thereof had been collected without the authority of law from the appellants. The appellants contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof. It is difficult to see how the High Court could have allowed the appellants prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes. The appeals have, therefore, to beCounsel for the respondents, however, places strong reliance on the following observations of a Constitution Bench of this court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450 ; [1964] 6 SCRThough the provisions of the Limitation Act do not, as such, apply to the granting of relief under article 226, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 could be measured ......... Where the delay is more than that period, it will almost always be proper for the court to hold that it is unreasonable.He also relies on Cawasji and Co. v. State of Mysore [1975] 2 SCR 511 and draws our attention to the decision in Vallabh Glass Works v. Union of India [1984] 3 SCR 180 , where the claim for refund in respect of period beyond three years was rejected. He contends, on the strength of the above decisions, that the High Court rightly rejected the appellants claim forOn the other hand, it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists. Counsel refers in this context to Venkateswaran v. Ramchand [1962] 1 SCR 753 , Chandra Bhushan v. Deputy Director of Consolidation [1967] 2 SCR 286 , Trilokchand Motichand v. Munshi, Commissioner of Sales Tax [1970] 25 STC 289 (SC); [1969] 2 SCR 824 , Ramachandra Shankar Deodhar v. State of Maharashtra [1974] 2 SCR 216 , Joginder Nath v. Union of India [1975] 2 SCR 553 , Shiv Shanker Dal Mills v. State of Haryana [1980] SCR 1170 and State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251 , and contends that these decisions have qualified the observations of Das Gupta J. in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261As pointed out by my learned brother, in the present case, the appellants averment that they realised their mistake only when they came to know about the decision in Loong Soong Tea Estates case in July, 1973 (Civil Rule No. 1005 of 1969 decided on July 10,High Court) stands uncontroverted. There is nothing on record either to show that the appellants had realised their mistake even earlier, at about the time when the writ petition in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10,High Court) was filed or at the time when the earlier decision of 1966 referred to in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10,High Court) judgment was rendered. On this finding of fact, the writ petitions filed by the appellants in November, 1973, were filed within the period of limitation prescribed in article 113 read with section 23 ofthe Limitation Act, 1963. Thus, the petitions were within time even by the test enunciated in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCRI think, therefore, that, for the purposes of the present case, it is unnecessary to consider the larger question whether the bar of limitation should be considered as fatal to a writ petition as to a suit for recovery or whether it is only a relevant but not a conclusive factor that should be taken into account by the court in exercising its discretion | 1 | 7,071 | 2,111 | ### Instruction:
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in 1973 (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court), that the appellant realised the right to claim the relief of refund as a consequential relief, get the assessment set aside and the assessment was set aside by the very order itself in this case. That right has been granted by the High Court and the High Court has not refused the setting aside on the ground of delay. It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by the High Court by the judgment in this case which claimed also the consequential relief, that relief must automatically follow and the High Court was wrong in taking the view that a triable issue of limitation arises in this case. In the absence of any averment to the contrary, the averment of the appellant in the petition that they came to know only after the Loong Soongs case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) must be accepted. The High Court was wrong in contending that they should have been more diligent. After all, the discretion must be fair and equitable. In the facts of this case, we are of the opinion that the High Court was in error in the approach it took. We, therefore, set aside the judgment and order of the High Court and direct refund of the tax illegally realised by the respondent. 17. The appeals are allowed. We set aside the judgment and order to the extent that it refused refund of the tax illegally realised. In the facts of this case, the parties will pay and bear their own costs. S. RANGANATHAN J.- 18. I agree with the order proposed by my learned brother but would like to add a word of reservationIn view of the judgment of this court in Superintendent of Taxes v. Onkarmal Nathmal Trust [1975] Supp SCR 365, there can be no doubt that the assessments on the appellants were illegal and that the taxes demanded on the basis thereof had been collected without the authority of law from the appellants. The appellants contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof. It is difficult to see how the High Court could have allowed the appellants prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes. The appeals have, therefore, to be allowed. 19. Counsel for the respondents, however, places strong reliance on the following observations of a Constitution Bench of this court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450 ; [1964] 6 SCR 261 " Though the provisions of the Limitation Act do not, as such, apply to the granting of relief under article 226, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 could be measured ......... Where the delay is more than that period, it will almost always be proper for the court to hold that it is unreasonable." 20. He also relies on Cawasji and Co. v. State of Mysore [1975] 2 SCR 511 and draws our attention to the decision in Vallabh Glass Works v. Union of India [1984] 3 SCR 180 , where the claim for refund in respect of period beyond three years was rejected. He contends, on the strength of the above decisions, that the High Court rightly rejected the appellants claim for refund. 21. On the other hand, it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists. Counsel refers in this context to Venkateswaran v. Ramchand [1962] 1 SCR 753 , Chandra Bhushan v. Deputy Director of Consolidation [1967] 2 SCR 286 , Trilokchand Motichand v. Munshi, Commissioner of Sales Tax [1970] 25 STC 289 (SC); [1969] 2 SCR 824 , Ramachandra Shankar Deodhar v. State of Maharashtra [1974] 2 SCR 216 , Joginder Nath v. Union of India [1975] 2 SCR 553 , Shiv Shanker Dal Mills v. State of Haryana [1980] SCR 1170 and State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251 , and contends that these decisions have qualified the observations of Das Gupta J. in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261As pointed out by my learned brother, in the present case, the appellants averment that they realised their mistake only when they came to know about the decision in Loong Soong Tea Estates case in July, 1973 (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) stands uncontroverted. There is nothing on record either to show that the appellants had realised their mistake even earlier, at about the time when the writ petition in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) was filed or at the time when the earlier decision of 1966 referred to in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) judgment was rendered. On this finding of fact, the writ petitions filed by the appellants in November, 1973, were filed within the period of limitation prescribed in article 113 read with section 23 of the Limitation Act, 1963. Thus, the petitions were within time even by the test enunciated in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261. 22.
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Act, if the Act is ultra vires, that right would not enure to the benefit of theright has been granted by the High Court and the High Court has not refused the setting aside on the ground of delay. It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by the High Court by the judgment in this case which claimed also the consequential relief, that relief must automatically follow and the High Court was wrong in taking the view that a triable issue of limitation arises in this case. In the absence of any averment to the contrary, the averment of the appellant in the petition that they came to know only after the Loong Soongs case (Civil Rule No. 1005 of 1969 decided on July 10, 1973-Gauhati High Court) must be accepted. The High Court was wrong in contending that they should have been more diligent. After all, the discretion must be fair and equitable. In the facts of this case, we are of the opinion that the High Court was in error in the approach it took. We, therefore, set aside the judgment and order of the High Court and direct refund of the tax illegally realised by theappeals are allowed. We set aside the judgment and order to the extent that it refused refund of the tax illegally realised. In the facts of this case, the parties will pay and bear their own8. I agree with the order proposed by my learned brother but would like to add a word of reservationIn view of the judgment of this court in Superintendent of Taxes v. Onkarmal Nathmal Trust [1975] Supp SCR 365, there can be no doubt that the assessments on the appellants were illegal and that the taxes demanded on the basis thereof had been collected without the authority of law from the appellants. The appellants contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof. It is difficult to see how the High Court could have allowed the appellants prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes. The appeals have, therefore, to beCounsel for the respondents, however, places strong reliance on the following observations of a Constitution Bench of this court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450 ; [1964] 6 SCRThough the provisions of the Limitation Act do not, as such, apply to the granting of relief under article 226, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 could be measured ......... Where the delay is more than that period, it will almost always be proper for the court to hold that it is unreasonable.He also relies on Cawasji and Co. v. State of Mysore [1975] 2 SCR 511 and draws our attention to the decision in Vallabh Glass Works v. Union of India [1984] 3 SCR 180 , where the claim for refund in respect of period beyond three years was rejected. He contends, on the strength of the above decisions, that the High Court rightly rejected the appellants claim forOn the other hand, it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists. Counsel refers in this context to Venkateswaran v. Ramchand [1962] 1 SCR 753 , Chandra Bhushan v. Deputy Director of Consolidation [1967] 2 SCR 286 , Trilokchand Motichand v. Munshi, Commissioner of Sales Tax [1970] 25 STC 289 (SC); [1969] 2 SCR 824 , Ramachandra Shankar Deodhar v. State of Maharashtra [1974] 2 SCR 216 , Joginder Nath v. Union of India [1975] 2 SCR 553 , Shiv Shanker Dal Mills v. State of Haryana [1980] SCR 1170 and State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251 , and contends that these decisions have qualified the observations of Das Gupta J. in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCR 261As pointed out by my learned brother, in the present case, the appellants averment that they realised their mistake only when they came to know about the decision in Loong Soong Tea Estates case in July, 1973 (Civil Rule No. 1005 of 1969 decided on July 10,High Court) stands uncontroverted. There is nothing on record either to show that the appellants had realised their mistake even earlier, at about the time when the writ petition in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10,High Court) was filed or at the time when the earlier decision of 1966 referred to in Loong Soong Tea Estates case (Civil Rule No. 1005 of 1969 decided on July 10,High Court) judgment was rendered. On this finding of fact, the writ petitions filed by the appellants in November, 1973, were filed within the period of limitation prescribed in article 113 read with section 23 ofthe Limitation Act, 1963. Thus, the petitions were within time even by the test enunciated in Bhailal Bhais case [1964] 15 STC 450 (SC); [1964] 6 SCRI think, therefore, that, for the purposes of the present case, it is unnecessary to consider the larger question whether the bar of limitation should be considered as fatal to a writ petition as to a suit for recovery or whether it is only a relevant but not a conclusive factor that should be taken into account by the court in exercising its discretion
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Union Of India Vs. M/S. Ranbaxy Laboratories Ltd. | clause 25 of the Order. 22. The relevant considerations inter alia are the sales turnover as also production of a new drug which was not produced elsewhere, if developed through indigenous research and development. 23. Pentazocine is used for a patient suffering from traumatic pain. The Central Government must be held to have applied its mind before issuing the exemption notification. 24. What must have been taken into consideration for that purpose is that respondent No.1 fulfilled the requisite criteria. The area of exemption is from the operation of the price control. Such exemption admittedly had been granted upto 31st October, 1999. Indisputably the Central Government had the power to extend the period of exemption. It could have granted further exemption subject to any condition. 25. The short question which arises for our consideration is as to whether the exemption Notification would apply in respect of drugs which were manufactured upto 31st October, 1999 or manufactured and sold upto the said date. The exemption granted is in respect of what. It is in respect of a drug manufactured by a company. What is marketed for sale is the drug manufactured. Manufacture of a drug is controlled by a different statute, namely the Drugs and Cosmetics Act, 1940. Process of marketing the drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished. 26. The contention of learned Additional Solicitor General that the drug could be manufactured upto 31st October, 1999 but on and from 1st November, 1999 it could be sold only at the price specified in the order, in our opinion, cannot be accepted. If the first respondent was entitled to avail the benefit of the exemption notification till the midnight of 31st October, 1979, sometime would be necessary for it to market the same. There must be some time lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer. 27. The Court while construing an exemption notification cannot lose sight of the ground realities inclduing the process of marketing and sale. The exemption order dated 29th August, 1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the company and the area of exemption is from the operation of the price control. They have a direct nexus. They are co related with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is despatched to the distributor. The distributor may despatch it to the whole seller. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in light of the object and purport of the Act. Thus, the decision relied upon by the learned Additional Solicitor General in Union of India vs. Cynamide India Ltd. : (1987) 2 SCC 720 ; Prag Ince & Oil Mills vs. Union of India : (1978) 3 SCC 459 and Sree Meenakshi Mills vs. Union of India : (1973) 1 SCC 129 will have no application. 28. It is true that 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufactured drug. Not only in terms of the Essential Commodities Act, 1955 but also under various others, for example Customs and Central Excise Act and Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramaniam that the first respondent was bound not only to manufacture but also to sell at a price upto 31st October, 1999 is correct, the same in our opinion lead to an absurdity. Such an anomaly and absurdity must be avoided. 29. Learned counsel wants us to apply the principle of purposive construction. It may be applied so as to give full effect to the exemption notification. The exemption notification must be construed to be a workable one. In New India Assurance Co. Ltd.. vs. Nusli Neville Wadia and another : 2007 (14) SCALE 556 this Court opined :- "51. Barak in his exhaustive work on `Purposive Construction explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Baraks words: "Hart and Sachs also appear to treat "purpose" as a subjective concept. I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably." (Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87) 30. While referring to its decision in Oriental Insurance Co. Ltd. vs. Brij Mohan and others : 2007 (7) Scale 753 it applied the doctrine of purposive construction. Applying the principle of doctrine of purposive construction, we are of the opinion that meaningful purpose could be achieved only if the construction of the notification as indicated hereinbefore is adopted and no other. 31. | 0[ds]The exemption granted is in respect of what. It is in respect of a drug manufactured by a company. What is marketed for sale is the drug manufactured. Manufacture of a drug is controlled by a different statute, namely the Drugs and Cosmetics Act, 1940. Process of marketing the drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished.The contention of learned Additional Solicitor General that the drug could be manufactured upto 31st October, 1999 but on and from 1st November, 1999 it could be sold only at the price specified in the order, in our opinion, cannot be accepted. If the first respondent was entitled to avail the benefit of the exemption notification till the midnight of 31st October, 1979, sometime would be necessary for it to market the same. There must be some time lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer.The Court while construing an exemption notification cannot lose sight of the ground realities inclduing the process of marketing and sale. The exemption order dated 29th August, 1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the company and the area of exemption is from the operation of the price control. They have a direct nexus. They are co related with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is despatched to the distributor. The distributor may despatch it to the whole seller. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in light of the object and purport of the Act. Thus, the decision relied upon by the learned Additional Solicitor General in Union of India vs. Cynamide India Ltd. : (1987) 2 SCC 720 ; Prag Ince & Oil Mills vs. Union of India : (1978) 3 SCC 459 and Sree Meenakshi Mills vs. Union of India : (1973) 1 SCC 129 will have no application.It is true that 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufacturedonly in terms of the Essential Commodities Act, 1955 but also under various others, for example Customs and Central Excise Act and Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramaniam that the first respondent was bound not only to manufacture but also to sell at a price upto 31st October, 1999 is correct, the same in our opinion lead to an absurdity. Such an anomaly and absurdity must be avoided.Learned counsel wants us to apply the principle of purposive construction. It may be applied so as to give full effect to the exemption notification. The exemption notification must be construed to be a workableNew India Assurance Co. Ltd.. vs. Nusli Neville Wadia and another : 2007 (14) SCALE 556 this Court opinedBarak in his exhaustive work on `Purposive Construction explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Baraksand Sachs also appear to treat "purpose" as a subjective concept. I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she actedBarak, Purposive Interpretation in Law, (2007) at pg.referring to its decision in Oriental Insurance Co. Ltd. vs. Brij Mohan and others : 2007 (7) Scale 753 it applied the doctrine of purposive construction. Applying the principle of doctrine of purposive construction, we are of the opinion that meaningful purpose could be achieved only if the construction of the notification as indicated hereinbefore is adopted and no | 0 | 3,021 | 895 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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clause 25 of the Order. 22. The relevant considerations inter alia are the sales turnover as also production of a new drug which was not produced elsewhere, if developed through indigenous research and development. 23. Pentazocine is used for a patient suffering from traumatic pain. The Central Government must be held to have applied its mind before issuing the exemption notification. 24. What must have been taken into consideration for that purpose is that respondent No.1 fulfilled the requisite criteria. The area of exemption is from the operation of the price control. Such exemption admittedly had been granted upto 31st October, 1999. Indisputably the Central Government had the power to extend the period of exemption. It could have granted further exemption subject to any condition. 25. The short question which arises for our consideration is as to whether the exemption Notification would apply in respect of drugs which were manufactured upto 31st October, 1999 or manufactured and sold upto the said date. The exemption granted is in respect of what. It is in respect of a drug manufactured by a company. What is marketed for sale is the drug manufactured. Manufacture of a drug is controlled by a different statute, namely the Drugs and Cosmetics Act, 1940. Process of marketing the drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished. 26. The contention of learned Additional Solicitor General that the drug could be manufactured upto 31st October, 1999 but on and from 1st November, 1999 it could be sold only at the price specified in the order, in our opinion, cannot be accepted. If the first respondent was entitled to avail the benefit of the exemption notification till the midnight of 31st October, 1979, sometime would be necessary for it to market the same. There must be some time lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer. 27. The Court while construing an exemption notification cannot lose sight of the ground realities inclduing the process of marketing and sale. The exemption order dated 29th August, 1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the company and the area of exemption is from the operation of the price control. They have a direct nexus. They are co related with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is despatched to the distributor. The distributor may despatch it to the whole seller. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in light of the object and purport of the Act. Thus, the decision relied upon by the learned Additional Solicitor General in Union of India vs. Cynamide India Ltd. : (1987) 2 SCC 720 ; Prag Ince & Oil Mills vs. Union of India : (1978) 3 SCC 459 and Sree Meenakshi Mills vs. Union of India : (1973) 1 SCC 129 will have no application. 28. It is true that 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufactured drug. Not only in terms of the Essential Commodities Act, 1955 but also under various others, for example Customs and Central Excise Act and Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramaniam that the first respondent was bound not only to manufacture but also to sell at a price upto 31st October, 1999 is correct, the same in our opinion lead to an absurdity. Such an anomaly and absurdity must be avoided. 29. Learned counsel wants us to apply the principle of purposive construction. It may be applied so as to give full effect to the exemption notification. The exemption notification must be construed to be a workable one. In New India Assurance Co. Ltd.. vs. Nusli Neville Wadia and another : 2007 (14) SCALE 556 this Court opined :- "51. Barak in his exhaustive work on `Purposive Construction explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Baraks words: "Hart and Sachs also appear to treat "purpose" as a subjective concept. I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably." (Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87) 30. While referring to its decision in Oriental Insurance Co. Ltd. vs. Brij Mohan and others : 2007 (7) Scale 753 it applied the doctrine of purposive construction. Applying the principle of doctrine of purposive construction, we are of the opinion that meaningful purpose could be achieved only if the construction of the notification as indicated hereinbefore is adopted and no other. 31.
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The exemption granted is in respect of what. It is in respect of a drug manufactured by a company. What is marketed for sale is the drug manufactured. Manufacture of a drug is controlled by a different statute, namely the Drugs and Cosmetics Act, 1940. Process of marketing the drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished.The contention of learned Additional Solicitor General that the drug could be manufactured upto 31st October, 1999 but on and from 1st November, 1999 it could be sold only at the price specified in the order, in our opinion, cannot be accepted. If the first respondent was entitled to avail the benefit of the exemption notification till the midnight of 31st October, 1979, sometime would be necessary for it to market the same. There must be some time lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer.The Court while construing an exemption notification cannot lose sight of the ground realities inclduing the process of marketing and sale. The exemption order dated 29th August, 1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the company and the area of exemption is from the operation of the price control. They have a direct nexus. They are co related with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is despatched to the distributor. The distributor may despatch it to the whole seller. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in light of the object and purport of the Act. Thus, the decision relied upon by the learned Additional Solicitor General in Union of India vs. Cynamide India Ltd. : (1987) 2 SCC 720 ; Prag Ince & Oil Mills vs. Union of India : (1978) 3 SCC 459 and Sree Meenakshi Mills vs. Union of India : (1973) 1 SCC 129 will have no application.It is true that 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufacturedonly in terms of the Essential Commodities Act, 1955 but also under various others, for example Customs and Central Excise Act and Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramaniam that the first respondent was bound not only to manufacture but also to sell at a price upto 31st October, 1999 is correct, the same in our opinion lead to an absurdity. Such an anomaly and absurdity must be avoided.Learned counsel wants us to apply the principle of purposive construction. It may be applied so as to give full effect to the exemption notification. The exemption notification must be construed to be a workableNew India Assurance Co. Ltd.. vs. Nusli Neville Wadia and another : 2007 (14) SCALE 556 this Court opinedBarak in his exhaustive work on `Purposive Construction explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Baraksand Sachs also appear to treat "purpose" as a subjective concept. I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she actedBarak, Purposive Interpretation in Law, (2007) at pg.referring to its decision in Oriental Insurance Co. Ltd. vs. Brij Mohan and others : 2007 (7) Scale 753 it applied the doctrine of purposive construction. Applying the principle of doctrine of purposive construction, we are of the opinion that meaningful purpose could be achieved only if the construction of the notification as indicated hereinbefore is adopted and no
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SANDHYA PANT Vs. DEEPAK RUWALI & ORS | ruler of Travancore under Section 18(2) of the TC Act shall stand delegated to the Administrative Committee while the Advisory Committee shall be deemed to be the Committee constituted in terms of Section 20 of the TC Act. It is made clear that all the members including the Chairpersons of the Administrative Committee and the Advisory Committee must be Hindus and fulfil the requirements in Section 2(aa) of the TC Act. All the other Committees constituted in terms of various orders passed by this Court shall continue for four months, and it shall be up to the Advisory Committee to consider whether the services of those Committees are required or not. It must also be stated that the present security arrangements as deployed by the State Government shall be continued, but the expenses in that behalf shall be borne by the Temple hereafter. 42. There is a difference in the traditional mode and manner of management of the Padmanabhaswamy Temple at Thiruvananthapuram in respect of which the right of management is vested with the Ruler of Travancore and the Chitai Golu Devta Temple administered by the Appellant and the Respondents. Be that as it may, even in the case of the Padmanabhaswamy Temple, the Court vested the Temple Committee constituted in terms of its order, with all the powers of management of the Ruler of Travancore. 43. In the instant case, it is not exactly clear as to which heirs of the Pant family are entitled to shebaitship rights in respect of the Chitai Golu Devta Temple and there appears to be disputes in this regard amongst members of the Pant family. 44. The judgment in Guruvayoor Devaswom Managing Committee and Another v. C. K. Rajan and Others (2003) 7 SCC 546, cited by Mr. Gupta was rendered in the facts and circumstances of the case of Guruvayoor Temple. In this case, the Court held:- 56. The case at hand does not fall in any of the aforementioned categories, where a PIL could be entertained. 57. No reported decision has also been brought to our notice where a public interest litigation was entertained in a similar matter. 58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not. 59. It is trite, where a segment of the public is not interested in the cause, a public interest litigation would not ordinarily be entertained. 60. It is possible to contend that the Hindus in general and the devotees visiting the temple in particular are interested in proper management of the temple at the hands of the statutory functionaries. That may be so but the Act is a self-contained code. Duties and functions are prescribed in the Act and the Rules framed thereunder. Forums have been created thereunder for ventilation of the grievances of the affected persons. Ordinarily, therefore, such forums should be moved at the first instance. The State should be asked to look into the grievances of the aggrieved devotees, both as parens patriae as also in discharge of its statutory duties. *** 63. The High Court should not have proceeded simply to supplant, ignore or bypass the statute. The High Court has not shown any strong and cogent reasons for an Administrator to continue in an office even after expiry of his tenure. It appears from the orders dated 7-2-1993 that the High Court without cogent and sufficient reason allowed the Administrator to continue in office although his term was over and he was posted elsewhere. He also could not have been conferred powers wider than Section 17 of the Act. The High Court took over the power of appointment of the Commissioner bypassing the procedure set out in the Act by calling upon the Government to furnish the names of 5 IAS officers to the Court so that it could exercise the power of appointment of the Commissioner. 45. Unlike the Guruvayoor Temple which was governed by Guruvayoor Devaswom Managing Committee constituted under the Guruvayoor Devaswom Act, 1978, there is no specific statute governing the Chitai Golu Devta Temple. 46. In our considered view, the High Court has not committed any error in passing the impugned order. The only question is, whether the order should have been passed in the absence of the Appellant, without deciding the Appellants application for impleadment. On a perusal of the judgment and order, it does not appear that anyone drew the attention of the Court to pending impleadment application of the Appellant. The Appellant could have appeared and made submissions if she had so chosen, even without being added as party. In any case, other members of the Pant family including the Respondent Nos.7 to 10, who, according to the Appellant were in the Mandir Samiti of which the Appellant claims to be Vice President were duly given an opportunity of hearing. We are not inclined to interfere with the judgment and order impugned. | 0[ds]41. In Marthanda Varma (supra), this Court held:-152. Consistent with the stand that the Temple is a public Temple and that no remuneration at any stage was derived in the past or would be aimed at in future, a suggestion was made on behalf of the appellants in the form of a note in response to the affidavit-in-reply filed on behalf of the State. In the said note, which is set out in detail in para 64 hereinabove, the appellants have suggested the composition of an Administrative Committee, and of an Advisory Committee. Broadly, it is suggested that the Administrative Committee be formed comprising of five Members, the Chairperson being a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala; the other four members being:(i) a nominee of the trustee;(ii) the Chief Thantri of the Temple;(iii) a nominee of the Government of Kerala; and(iv) a Member to be nominated by the Ministry of Culture, the Government of India.In terms of Para 8 of the note, the trustee that is to say the Manager or shebait of the Temple would be guided by the advice given by the Advisory Committee.153. On the other hand, the suggestion made on behalf of the State is to follow the model statutorily enacted for Guruvayoor Devaswom, and thus the Managing Committee would be of eight Members comprising of two ex-officio members, namely, Padmanabhadasa and the Senior Thantri; while the other six members would be nominated by the Hindus among the Council of Ministers; one of them being member of the Scheduled Castes and Scheduled Tribes while one being a woman, and the other being a representative of the employees of the Temple.157. The provisions of the TC Act with respect to the administration of the Temple are clear:157.1 Under Section 18(2), the administration shall be conducted. Subject to the control and supervision of the ruler of Travancore, by an Executive Officer appointed by him.157.2. Sree Padmanabhaswamy Temple Committee comprised of three members nominated by the ruler of Travancore in terms of Section 20 is to advise the ruler of Travancore in the discharge of his functions.158. The statute has thus vested the power of appointing the Executive Officer and of forming the Advisory Committee, in the ruler of Travancore. In the note, the appellants have stated:158.1. The trustee shall delegate his powers of administration under Section 18(2) to the Administrative Committee which shall administer the Temple through an Executive Officer to be appointed by the Committee.158.2. On all policy matters, the trustee shall be guided by the advice of the Advisory Committee.159. Having given our anxious consideration to the rival suggestions, the composition of the Committees as suggested by the appellants deserves acceptance, especially in light of the conclusions arrived at by us that the Managership or the shebaitship of the Temple continues with the Family. As against the administration contemplated by Chapter III of Part I of the TC Act in the hands of the ruler of Travancore in absolute terms, the course now suggested by the appellants is quite balanced. The composition of the Administrative Committee as suggested is broadbased and would not be loaded in favour or against the trustee. However, considering the fact that the present interim Administrative Committee headed by the District Judge is in seisin for the last more than five years, and various District Judges as Chairpersons of the Committee conducted themselves quite well, in our view, a minor change in the Administrative Committee suggested by the appellants in their note is called for. Instead of a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the Administrative Committee, in the interest of justice, the District Judge, Thiruvananthapuram shall be the Chairperson of the Administrative Committee. Needless to say that the present Chairperson of the Interim Administrative Committee shall continue to be the Chairperson so long as he holds the post of the District Judge, Thiruvananthapuram. The composition of the Advisory Committee will ensure that the administration of the Temple is conducted in a fair and transparent manner.160. We, therefore, accept the suggestions made by the appellants in their note adverted to in detail in para 64 hereinabove with regard to the constitution of the Administrative Committee and the Advisory Committee subject to the modification with respect to the Chairperson of the Administrative Committee as stated in the preceding paragraph. Appellant 1 shall file an appropriate affidavit of undertaking within four weeks of this judgment in terms of Para 1 of the note and also agreeing to the modification as stated above. The affidavit of undertaking so filed shall be binding on Appellant 1 and all his successors.162. In terms of the note submitted by the appellants, the powers of the ruler of Travancore under Section 18(2) of the TC Act shall stand delegated to the Administrative Committee while the Advisory Committee shall be deemed to be the Committee constituted in terms of Section 20 of the TC Act. It is made clear that all the members including the Chairpersons of the Administrative Committee and the Advisory Committee must be Hindus and fulfil the requirements in Section 2(aa) of the TC Act. All the other Committees constituted in terms of various orders passed by this Court shall continue for four months, and it shall be up to the Advisory Committee to consider whether the services of those Committees are required or not. It must also be stated that the present security arrangements as deployed by the State Government shall be continued, but the expenses in that behalf shall be borne by the Temple hereafter.42. There is a difference in the traditional mode and manner of management of the Padmanabhaswamy Temple at Thiruvananthapuram in respect of which the right of management is vested with the Ruler of Travancore and the Chitai Golu Devta Temple administered by the Appellant and the Respondents. Be that as it may, even in the case of the Padmanabhaswamy Temple, the Court vested the Temple Committee constituted in terms of its order, with all the powers of management of the Ruler of Travancore.43. In the instant case, it is not exactly clear as to which heirs of the Pant family are entitled to shebaitship rights in respect of the Chitai Golu Devta Temple and there appears to be disputes in this regard amongst members of the Pant family.44. The judgment in Guruvayoor Devaswom Managing Committee and Another v. C. K. Rajan and Others (2003) 7 SCC 546, cited by Mr. Gupta was rendered in the facts and circumstances of the case of Guruvayoor Temple. In this case, the Court held:-56. The case at hand does not fall in any of the aforementioned categories, where a PIL could be entertained.57. No reported decision has also been brought to our notice where a public interest litigation was entertained in a similar matter.58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not.59. It is trite, where a segment of the public is not interested in the cause, a public interest litigation would not ordinarily be entertained.60. It is possible to contend that the Hindus in general and the devotees visiting the temple in particular are interested in proper management of the temple at the hands of the statutory functionaries. That may be so but the Act is a self-contained code. Duties and functions are prescribed in the Act and the Rules framed thereunder. Forums have been created thereunder for ventilation of the grievances of the affected persons. Ordinarily, therefore, such forums should be moved at the first instance. The State should be asked to look into the grievances of the aggrieved devotees, both as parens patriae as also in discharge of its statutory duties.63. The High Court should not have proceeded simply to supplant, ignore or bypass the statute. The High Court has not shown any strong and cogent reasons for an Administrator to continue in an office even after expiry of his tenure. It appears from the orders dated 7-2-1993 that the High Court without cogent and sufficient reason allowed the Administrator to continue in office although his term was over and he was posted elsewhere. He also could not have been conferred powers wider than Section 17 of the Act. The High Court took over the power of appointment of the Commissioner bypassing the procedure set out in the Act by calling upon the Government to furnish the names of 5 IAS officers to the Court so that it could exercise the power of appointment of the Commissioner.45. Unlike the Guruvayoor Temple which was governed by Guruvayoor Devaswom Managing Committee constituted under the Guruvayoor Devaswom Act, 1978, there is no specific statute governing the Chitai Golu Devta Temple.46. In our considered view, the High Court has not committed any error in passing the impugned order. The only question is, whether the order should have been passed in the absence of the Appellant, without deciding the Appellants application for impleadment. On a perusal of the judgment and order, it does not appear that anyone drew the attention of the Court to pending impleadment application of the Appellant. The Appellant could have appeared and made submissions if she had so chosen, even without being added as party. In any case, other members of the Pant family including the Respondent Nos.7 to 10, who, according to the Appellant were in the Mandir Samiti of which the Appellant claims to be Vice President were duly given an opportunity of hearing. We are not inclined to interfere with the judgment and order impugned. | 0 | 6,776 | 1,952 | ### 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:
ruler of Travancore under Section 18(2) of the TC Act shall stand delegated to the Administrative Committee while the Advisory Committee shall be deemed to be the Committee constituted in terms of Section 20 of the TC Act. It is made clear that all the members including the Chairpersons of the Administrative Committee and the Advisory Committee must be Hindus and fulfil the requirements in Section 2(aa) of the TC Act. All the other Committees constituted in terms of various orders passed by this Court shall continue for four months, and it shall be up to the Advisory Committee to consider whether the services of those Committees are required or not. It must also be stated that the present security arrangements as deployed by the State Government shall be continued, but the expenses in that behalf shall be borne by the Temple hereafter. 42. There is a difference in the traditional mode and manner of management of the Padmanabhaswamy Temple at Thiruvananthapuram in respect of which the right of management is vested with the Ruler of Travancore and the Chitai Golu Devta Temple administered by the Appellant and the Respondents. Be that as it may, even in the case of the Padmanabhaswamy Temple, the Court vested the Temple Committee constituted in terms of its order, with all the powers of management of the Ruler of Travancore. 43. In the instant case, it is not exactly clear as to which heirs of the Pant family are entitled to shebaitship rights in respect of the Chitai Golu Devta Temple and there appears to be disputes in this regard amongst members of the Pant family. 44. The judgment in Guruvayoor Devaswom Managing Committee and Another v. C. K. Rajan and Others (2003) 7 SCC 546, cited by Mr. Gupta was rendered in the facts and circumstances of the case of Guruvayoor Temple. In this case, the Court held:- 56. The case at hand does not fall in any of the aforementioned categories, where a PIL could be entertained. 57. No reported decision has also been brought to our notice where a public interest litigation was entertained in a similar matter. 58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not. 59. It is trite, where a segment of the public is not interested in the cause, a public interest litigation would not ordinarily be entertained. 60. It is possible to contend that the Hindus in general and the devotees visiting the temple in particular are interested in proper management of the temple at the hands of the statutory functionaries. That may be so but the Act is a self-contained code. Duties and functions are prescribed in the Act and the Rules framed thereunder. Forums have been created thereunder for ventilation of the grievances of the affected persons. Ordinarily, therefore, such forums should be moved at the first instance. The State should be asked to look into the grievances of the aggrieved devotees, both as parens patriae as also in discharge of its statutory duties. *** 63. The High Court should not have proceeded simply to supplant, ignore or bypass the statute. The High Court has not shown any strong and cogent reasons for an Administrator to continue in an office even after expiry of his tenure. It appears from the orders dated 7-2-1993 that the High Court without cogent and sufficient reason allowed the Administrator to continue in office although his term was over and he was posted elsewhere. He also could not have been conferred powers wider than Section 17 of the Act. The High Court took over the power of appointment of the Commissioner bypassing the procedure set out in the Act by calling upon the Government to furnish the names of 5 IAS officers to the Court so that it could exercise the power of appointment of the Commissioner. 45. Unlike the Guruvayoor Temple which was governed by Guruvayoor Devaswom Managing Committee constituted under the Guruvayoor Devaswom Act, 1978, there is no specific statute governing the Chitai Golu Devta Temple. 46. In our considered view, the High Court has not committed any error in passing the impugned order. The only question is, whether the order should have been passed in the absence of the Appellant, without deciding the Appellants application for impleadment. On a perusal of the judgment and order, it does not appear that anyone drew the attention of the Court to pending impleadment application of the Appellant. The Appellant could have appeared and made submissions if she had so chosen, even without being added as party. In any case, other members of the Pant family including the Respondent Nos.7 to 10, who, according to the Appellant were in the Mandir Samiti of which the Appellant claims to be Vice President were duly given an opportunity of hearing. We are not inclined to interfere with the judgment and order impugned.
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of the note submitted by the appellants, the powers of the ruler of Travancore under Section 18(2) of the TC Act shall stand delegated to the Administrative Committee while the Advisory Committee shall be deemed to be the Committee constituted in terms of Section 20 of the TC Act. It is made clear that all the members including the Chairpersons of the Administrative Committee and the Advisory Committee must be Hindus and fulfil the requirements in Section 2(aa) of the TC Act. All the other Committees constituted in terms of various orders passed by this Court shall continue for four months, and it shall be up to the Advisory Committee to consider whether the services of those Committees are required or not. It must also be stated that the present security arrangements as deployed by the State Government shall be continued, but the expenses in that behalf shall be borne by the Temple hereafter.42. There is a difference in the traditional mode and manner of management of the Padmanabhaswamy Temple at Thiruvananthapuram in respect of which the right of management is vested with the Ruler of Travancore and the Chitai Golu Devta Temple administered by the Appellant and the Respondents. Be that as it may, even in the case of the Padmanabhaswamy Temple, the Court vested the Temple Committee constituted in terms of its order, with all the powers of management of the Ruler of Travancore.43. In the instant case, it is not exactly clear as to which heirs of the Pant family are entitled to shebaitship rights in respect of the Chitai Golu Devta Temple and there appears to be disputes in this regard amongst members of the Pant family.44. The judgment in Guruvayoor Devaswom Managing Committee and Another v. C. K. Rajan and Others (2003) 7 SCC 546, cited by Mr. Gupta was rendered in the facts and circumstances of the case of Guruvayoor Temple. In this case, the Court held:-56. The case at hand does not fall in any of the aforementioned categories, where a PIL could be entertained.57. No reported decision has also been brought to our notice where a public interest litigation was entertained in a similar matter.58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not.59. It is trite, where a segment of the public is not interested in the cause, a public interest litigation would not ordinarily be entertained.60. It is possible to contend that the Hindus in general and the devotees visiting the temple in particular are interested in proper management of the temple at the hands of the statutory functionaries. That may be so but the Act is a self-contained code. Duties and functions are prescribed in the Act and the Rules framed thereunder. Forums have been created thereunder for ventilation of the grievances of the affected persons. Ordinarily, therefore, such forums should be moved at the first instance. The State should be asked to look into the grievances of the aggrieved devotees, both as parens patriae as also in discharge of its statutory duties.63. The High Court should not have proceeded simply to supplant, ignore or bypass the statute. The High Court has not shown any strong and cogent reasons for an Administrator to continue in an office even after expiry of his tenure. It appears from the orders dated 7-2-1993 that the High Court without cogent and sufficient reason allowed the Administrator to continue in office although his term was over and he was posted elsewhere. He also could not have been conferred powers wider than Section 17 of the Act. The High Court took over the power of appointment of the Commissioner bypassing the procedure set out in the Act by calling upon the Government to furnish the names of 5 IAS officers to the Court so that it could exercise the power of appointment of the Commissioner.45. Unlike the Guruvayoor Temple which was governed by Guruvayoor Devaswom Managing Committee constituted under the Guruvayoor Devaswom Act, 1978, there is no specific statute governing the Chitai Golu Devta Temple.46. In our considered view, the High Court has not committed any error in passing the impugned order. The only question is, whether the order should have been passed in the absence of the Appellant, without deciding the Appellants application for impleadment. On a perusal of the judgment and order, it does not appear that anyone drew the attention of the Court to pending impleadment application of the Appellant. The Appellant could have appeared and made submissions if she had so chosen, even without being added as party. In any case, other members of the Pant family including the Respondent Nos.7 to 10, who, according to the Appellant were in the Mandir Samiti of which the Appellant claims to be Vice President were duly given an opportunity of hearing. We are not inclined to interfere with the judgment and order impugned.
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Nazeeria Motor Service Etc Vs. State of Andhra Pradesh & Another | this court proceeded to examine whether the restrictions imposed by the statute impugned in that case were reasonable and in public interest within the meaning of Article 304 (b). The effect of compliance with the provisions of the proviso to Art. 304 (b) by obtaining the previous sanction of the President to the Bill was also considered and it has been laid down that notwithstanding the sanction the question of the restrictions being reasonable and in public interest is open to examination by the court. The Act can be held to be valid only if it is shown that the restrictions imposed by it are reasonable and in public interest.6. It has not been contended on behalf of the State that the impugned Validating Act imposes a tax which is by way of a regulatory or compensatory measure. It has, therefore, to be seen whether the restrictions imposed are reasonable and in public interest within the meaning of Article 304 (b). Before the High Court an attempt was made on behalf of the appellants to show that by raising the rate of tax the burden had been increased to such an extent that the business of the appellants had been virtually annihilated. According to some of the affidavits filed on behalf of the writ petitioners, profits derived in recent years did not exceed an average of Rs. 2,000 per stage carriage even without the additional burden which had been imposed and the transporters would suffer heavy losses if the tax as increased by the impugned legislation were to be realized. The High Court referred to the computation of the income by the Income-tax department of some of the transporters in whose assessments the income in regard to each bus had been calculated at a figure of Rs. 7,000 annually, which showed that the profits were much higher than Rs. 2,000. It was not disputed before the High Court that the transporters had been permitted to enhance the fares. If the fares could be enhanced it was obvious that the burden would not fall on the transporters. It was urged that owing to competition from the railways and from operators whose vehicles had been registered in the Madras State and who could charge lower rates the appellants were not in a position to collect extra fares which they had been permitted to do.This argument also cannot hold and was rightly repelled by the High Court on the ground that if the operators were not prepared to charge higher rates as a matter of policy or for the purpose of business competition that could not impinge on the reasonableness of the restriction. Apart from a faint attempt to repeat some of the arguments which were addressed before the High Court on this point nothing new has been brought to our notice which would justify the view that the tax which has been imposed exceeds the limits of permissible reasonableness. As regards public interest we are unable to find nor has any attempt been made to satisfy us that the provisions of the impugned Validating Act with regard to imposition of tax are not in public interest.7. This is sufficient to dispose of the challenge under Article 19 (1) (g) as well. We may in this connection refer briefly to the conclusion of the High Court which was reached on a consideration of the affidavits filed before it. It has been found that there is no material which would warrant the conclusion thatthe increase in the surcharge of the fares and freight contemplated by the impugned Validating Act would constitute an impediment to the trade. The utmost that could be said was that it would result in the diminution of profits. Even on the assumption that the profits would be diminished or greatly reduced it cannot be held that there is any infringement of Article 19 (1) (g).8. Coming to the attack on the ground of violation of Article 14 reference may be made to the background relating to taxation of passengers and goods carried in motor vehicles in the State prior to the formation of Andhra Pradesh. It appears that there was no law in the erstwhile Hyderabad State imposing any tax on passengers and goods. After the merger of Telengana and Andhra areas the laws in operation in the Telengana region continued to remain in force by virtue of the provisions of S. 119 of the States Reorganization Act, 1956. By Act X of 1958 the State of Andhra Pradesh amended Act XVI 1952 inter alia extending that Act, to the Telengana area. This Act (Act X of 1958) also amended the Principle Act by adding S. 19 according to which the Government could grant an exemption by means of a notification in respect of any motor vehicle running in a particular area. On November 4, 1961 a notification was issued exempting passengers, luggage and goods carried in stage carries from payment of tax under the aforesaid Act within the Telengana area. There can be no manner of doubt that this exemption was given to the operators in the Telengana region for the reason thatbefore the extension of the parent Act to this area no tax similar to the one levied under the parent Act was payable in that area and that this exemption was granted under a different enactment. It is apparent that for these reasons the challenge under Article 14 cannot succeed.The same is the position with regard to the tax payable by the appellants and that which the transporters having permits for inter-State routes have to pay. As has been pointed out in the affidavits filed on behalf of the State the laws in the two States,.Madras and Andhra Pradesh are different and persons having primary permits from Madras are naturally governed by the laws operating in that State. No question of discrimination can arise when taxes are discrimination can arise when taxes are being imposed under two different sets of laws in different States or geographical areas. | 0[ds]According to some of the affidavits filed on behalf of the writ petitioners, profits derived in recent years did not exceed an average of Rs. 2,000 per stage carriage even without the additional burden which had been imposed and the transporters would suffer heavy losses if the tax as increased by the impugned legislation were to be realized. The High Court referred to the computation of the income by the Income-tax department of some of the transporters in whose assessments the income in regard to each bus had been calculated at a figure of Rs. 7,000 annually, which showed that the profits were much higher than Rs. 2,000. It was not disputed before the High Court that the transporters had been permitted to enhance the fares. If the fares could be enhanced it was obvious that the burden would not fall on theargument also cannot hold and was rightly repelled by the High Court on the ground that if the operators were not prepared to charge higher rates as a matter of policy or for the purpose of business competition that could not impinge on the reasonableness of the restriction. Apart from a faint attempt to repeat some of the arguments which were addressed before the High Court on this point nothing new has been brought to our notice which would justify the view that the tax which has been imposed exceeds the limits of permissible reasonableness. As regards public interest we are unable to find nor has any attempt been made to satisfy us that the provisions of the impugned Validating Act with regard to imposition of tax are not in public interest.Coming to the attack on the ground of violation of Article 14 reference may be made to the background relating to taxation of passengers and goods carried in motor vehicles in the State prior to the formation of Andhra Pradesh. It appears that there was no law in the erstwhile Hyderabad State imposing any tax on passengers and goods. After the merger of Telengana and Andhra areas the laws in operation in the Telengana region continued to remain in force by virtue of the provisions of S. 119 of the States Reorganization Act, 1956. By Act X of 1958 the State of Andhra Pradesh amended Act XVI 1952 inter alia extending that Act, to the Telengana area. This Act (Act X of 1958) also amended the Principle Act by adding S. 19 according to which the Government could grant an exemption by means of a notification in respect of any motor vehicle running in a particular area. On November 4, 1961 a notification was issued exempting passengers, luggage and goods carried in stage carries from payment of tax under the aforesaid Act within the Telengana area. There can be no manner of doubt that this exemption was given to the operators in the Telengana region for the reason thatbefore the extension of the parent Act to this area no tax similar to the one levied under the parent Act was payable in that area and that this exemption was granted under a different enactment. It is apparent that for these reasons the challenge under Article 14 cannot succeed.The same is the position with regard to the tax payable by the appellants and that which the transporters having permits for inter-State routes have to pay. As has been pointed out in the affidavits filed on behalf of the State the laws in the two States,.Madras and Andhra Pradesh are different and persons having primary permits from Madras are naturally governed by the laws operating in that State. No question of discrimination can arise when taxes are discrimination can arise when taxes are being imposed under two different sets of laws in different States or geographical areas. | 0 | 2,686 | 662 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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this court proceeded to examine whether the restrictions imposed by the statute impugned in that case were reasonable and in public interest within the meaning of Article 304 (b). The effect of compliance with the provisions of the proviso to Art. 304 (b) by obtaining the previous sanction of the President to the Bill was also considered and it has been laid down that notwithstanding the sanction the question of the restrictions being reasonable and in public interest is open to examination by the court. The Act can be held to be valid only if it is shown that the restrictions imposed by it are reasonable and in public interest.6. It has not been contended on behalf of the State that the impugned Validating Act imposes a tax which is by way of a regulatory or compensatory measure. It has, therefore, to be seen whether the restrictions imposed are reasonable and in public interest within the meaning of Article 304 (b). Before the High Court an attempt was made on behalf of the appellants to show that by raising the rate of tax the burden had been increased to such an extent that the business of the appellants had been virtually annihilated. According to some of the affidavits filed on behalf of the writ petitioners, profits derived in recent years did not exceed an average of Rs. 2,000 per stage carriage even without the additional burden which had been imposed and the transporters would suffer heavy losses if the tax as increased by the impugned legislation were to be realized. The High Court referred to the computation of the income by the Income-tax department of some of the transporters in whose assessments the income in regard to each bus had been calculated at a figure of Rs. 7,000 annually, which showed that the profits were much higher than Rs. 2,000. It was not disputed before the High Court that the transporters had been permitted to enhance the fares. If the fares could be enhanced it was obvious that the burden would not fall on the transporters. It was urged that owing to competition from the railways and from operators whose vehicles had been registered in the Madras State and who could charge lower rates the appellants were not in a position to collect extra fares which they had been permitted to do.This argument also cannot hold and was rightly repelled by the High Court on the ground that if the operators were not prepared to charge higher rates as a matter of policy or for the purpose of business competition that could not impinge on the reasonableness of the restriction. Apart from a faint attempt to repeat some of the arguments which were addressed before the High Court on this point nothing new has been brought to our notice which would justify the view that the tax which has been imposed exceeds the limits of permissible reasonableness. As regards public interest we are unable to find nor has any attempt been made to satisfy us that the provisions of the impugned Validating Act with regard to imposition of tax are not in public interest.7. This is sufficient to dispose of the challenge under Article 19 (1) (g) as well. We may in this connection refer briefly to the conclusion of the High Court which was reached on a consideration of the affidavits filed before it. It has been found that there is no material which would warrant the conclusion thatthe increase in the surcharge of the fares and freight contemplated by the impugned Validating Act would constitute an impediment to the trade. The utmost that could be said was that it would result in the diminution of profits. Even on the assumption that the profits would be diminished or greatly reduced it cannot be held that there is any infringement of Article 19 (1) (g).8. Coming to the attack on the ground of violation of Article 14 reference may be made to the background relating to taxation of passengers and goods carried in motor vehicles in the State prior to the formation of Andhra Pradesh. It appears that there was no law in the erstwhile Hyderabad State imposing any tax on passengers and goods. After the merger of Telengana and Andhra areas the laws in operation in the Telengana region continued to remain in force by virtue of the provisions of S. 119 of the States Reorganization Act, 1956. By Act X of 1958 the State of Andhra Pradesh amended Act XVI 1952 inter alia extending that Act, to the Telengana area. This Act (Act X of 1958) also amended the Principle Act by adding S. 19 according to which the Government could grant an exemption by means of a notification in respect of any motor vehicle running in a particular area. On November 4, 1961 a notification was issued exempting passengers, luggage and goods carried in stage carries from payment of tax under the aforesaid Act within the Telengana area. There can be no manner of doubt that this exemption was given to the operators in the Telengana region for the reason thatbefore the extension of the parent Act to this area no tax similar to the one levied under the parent Act was payable in that area and that this exemption was granted under a different enactment. It is apparent that for these reasons the challenge under Article 14 cannot succeed.The same is the position with regard to the tax payable by the appellants and that which the transporters having permits for inter-State routes have to pay. As has been pointed out in the affidavits filed on behalf of the State the laws in the two States,.Madras and Andhra Pradesh are different and persons having primary permits from Madras are naturally governed by the laws operating in that State. No question of discrimination can arise when taxes are discrimination can arise when taxes are being imposed under two different sets of laws in different States or geographical areas.
### Response:
0
### Explanation:
According to some of the affidavits filed on behalf of the writ petitioners, profits derived in recent years did not exceed an average of Rs. 2,000 per stage carriage even without the additional burden which had been imposed and the transporters would suffer heavy losses if the tax as increased by the impugned legislation were to be realized. The High Court referred to the computation of the income by the Income-tax department of some of the transporters in whose assessments the income in regard to each bus had been calculated at a figure of Rs. 7,000 annually, which showed that the profits were much higher than Rs. 2,000. It was not disputed before the High Court that the transporters had been permitted to enhance the fares. If the fares could be enhanced it was obvious that the burden would not fall on theargument also cannot hold and was rightly repelled by the High Court on the ground that if the operators were not prepared to charge higher rates as a matter of policy or for the purpose of business competition that could not impinge on the reasonableness of the restriction. Apart from a faint attempt to repeat some of the arguments which were addressed before the High Court on this point nothing new has been brought to our notice which would justify the view that the tax which has been imposed exceeds the limits of permissible reasonableness. As regards public interest we are unable to find nor has any attempt been made to satisfy us that the provisions of the impugned Validating Act with regard to imposition of tax are not in public interest.Coming to the attack on the ground of violation of Article 14 reference may be made to the background relating to taxation of passengers and goods carried in motor vehicles in the State prior to the formation of Andhra Pradesh. It appears that there was no law in the erstwhile Hyderabad State imposing any tax on passengers and goods. After the merger of Telengana and Andhra areas the laws in operation in the Telengana region continued to remain in force by virtue of the provisions of S. 119 of the States Reorganization Act, 1956. By Act X of 1958 the State of Andhra Pradesh amended Act XVI 1952 inter alia extending that Act, to the Telengana area. This Act (Act X of 1958) also amended the Principle Act by adding S. 19 according to which the Government could grant an exemption by means of a notification in respect of any motor vehicle running in a particular area. On November 4, 1961 a notification was issued exempting passengers, luggage and goods carried in stage carries from payment of tax under the aforesaid Act within the Telengana area. There can be no manner of doubt that this exemption was given to the operators in the Telengana region for the reason thatbefore the extension of the parent Act to this area no tax similar to the one levied under the parent Act was payable in that area and that this exemption was granted under a different enactment. It is apparent that for these reasons the challenge under Article 14 cannot succeed.The same is the position with regard to the tax payable by the appellants and that which the transporters having permits for inter-State routes have to pay. As has been pointed out in the affidavits filed on behalf of the State the laws in the two States,.Madras and Andhra Pradesh are different and persons having primary permits from Madras are naturally governed by the laws operating in that State. No question of discrimination can arise when taxes are discrimination can arise when taxes are being imposed under two different sets of laws in different States or geographical areas.
|
Prashanti Medical Services & Research Foundation Vs. Union of India & Ors | 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court 20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project. 22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬2018. 23. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the assessees were not allowed to claim deduction of the amount paid by them to the appellant on account of insertion of sub-section(7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there. 32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬201823. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬201725. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬201729. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0 | 3,805 | 1,102 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court 20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project. 22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬2018. 23. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the assessees were not allowed to claim deduction of the amount paid by them to the appellant on account of insertion of sub-section(7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there. 32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
### Response:
0
### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬201823. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬201725. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬201729. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
|
Nishi Kanta Mondal Vs. State Of West Bengal | to when the detention would commence because the detaining authority cannot be certain at the time of the making of the detention order about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or concealing himself cannot be ruled out. In case the contentions advanced on behalf of the petitioner were to be accepted, the detention order would cease to be enforceable in case the person ordered to be detained cant some how be apprehended on the date mentioned in the order. We find it difficult to draw such an inference from the language of section 10 of the Act. The words "from the date of detention under the order", in our opinion, have reference to the date of the commencement of the detention in pursuance of the detention order. 8. Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to the objects for which a person can be ordered to be detained under the Act. In this connection, we find that, according to the grounds of detention which were furnished to the petitioner, he was being detained as he was acting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below:"On 12-2-71 at about 02.00 hrs. you and some of your associates being armed with bombs and other lethal weapons attacked Shri K. K. Naskar, I. A. S.., S. D. O. Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sound of explosion of bombs near the quarters of Shri S. C. Sarkar Magistrate Ist Class, Bongaon at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and disturbed the public order. (2) On 23-2-1971 between 01.45 hrs. and 02.15 hrs. Bongaon Police on receipt of a secret information searched a house at Subhaspalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." According to section 3 of the Act, the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. District Magistrates and some other officers under sub-section (3) of section 3 of the Act have been empowered, if satisfied as provided in sub-section (1), to exercise the powers conferred by the said sub-section. According to clause (d) of the sub-section (2) of section 3 of the Act, for the purposes of sub-section (1) the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" inter alia means:"committing or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbs, or is likely to disturb, public order." It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the Explosives Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S. D. O. Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of cl. (d) of sub-section (2) of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d).The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing the public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain a person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. | 0[ds]5. There is, in our opinion, no force in the above contention because it is based upon the assumption that the law made by the President ceases to operate immediately upon the revocation of the Proclamation. This assumption is not correct and runs contrary to clause (2) of Articles 357 of Constitution. According to that clause, "any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under Article 356, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects thing done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or re-enacted with or without modification by Act of the appropriate Legislature". The above provision makes it plain that the period for which a law made under Art. 356 (1) remains in force is not conterminous with the duration of the Proclamation. It has not been disputed that the President was competent under clause (1) of Article 356 of the Constitution to enact Act. No. 19 of 1970. The said Act, in view of the provisions of cl. (2) of Article 357, shall continue to remain in force in spite of the revocation of the proclamation dated March 19, 1970 and would cease to have effect only on the expiry of one year after the proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions of the Act are sooner repealed or re-enacted with or without modification by Act of the appropriate Legislature. As the aforesaid period of one year has not expired and as the provisions of the act have not been repealed or re-enacted with or without modification by Act of the appropriate Legislature, the impugned Act should be held to be still in force6. In view of our finding that the Act (Act No. 19 of 1970) is still in force, it is not necessary to consider the question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in accordance with Article 357 (2) of the Constitution7. Argument has then been advanced by Mr. Puri that the impugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention, Section 10 reads as under:-"10. In every case where a detention order has been made under this Act, the State Government shall with- in thirty days from the date of detention under the order, place before the Advisory Board, constituted by it under section 9, the grounds on which the order has been made and the representation, if any made by the person affected by the order, and in case where the order has been made by an officer specified in sub-section (3) of section 3, also the report made by such officer under sub-section (4) of section 3."It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the Explosives Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S. D. O. Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of cl. (d) of sub-section (2) of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d).The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing the public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain a person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. | 0 | 2,803 | 1,128 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
to when the detention would commence because the detaining authority cannot be certain at the time of the making of the detention order about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or concealing himself cannot be ruled out. In case the contentions advanced on behalf of the petitioner were to be accepted, the detention order would cease to be enforceable in case the person ordered to be detained cant some how be apprehended on the date mentioned in the order. We find it difficult to draw such an inference from the language of section 10 of the Act. The words "from the date of detention under the order", in our opinion, have reference to the date of the commencement of the detention in pursuance of the detention order. 8. Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to the objects for which a person can be ordered to be detained under the Act. In this connection, we find that, according to the grounds of detention which were furnished to the petitioner, he was being detained as he was acting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below:"On 12-2-71 at about 02.00 hrs. you and some of your associates being armed with bombs and other lethal weapons attacked Shri K. K. Naskar, I. A. S.., S. D. O. Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sound of explosion of bombs near the quarters of Shri S. C. Sarkar Magistrate Ist Class, Bongaon at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and disturbed the public order. (2) On 23-2-1971 between 01.45 hrs. and 02.15 hrs. Bongaon Police on receipt of a secret information searched a house at Subhaspalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." According to section 3 of the Act, the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. District Magistrates and some other officers under sub-section (3) of section 3 of the Act have been empowered, if satisfied as provided in sub-section (1), to exercise the powers conferred by the said sub-section. According to clause (d) of the sub-section (2) of section 3 of the Act, for the purposes of sub-section (1) the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" inter alia means:"committing or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbs, or is likely to disturb, public order." It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the Explosives Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S. D. O. Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of cl. (d) of sub-section (2) of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d).The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing the public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain a person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed.
### Response:
0
### Explanation:
based upon the assumption that the law made by the President ceases to operate immediately upon the revocation of the Proclamation. This assumption is not correct and runs contrary to clause (2) of Articles 357 of Constitution. According to that clause, "any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under Article 356, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects thing done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or re-enacted with or without modification by Act of the appropriate Legislature". The above provision makes it plain that the period for which a law made under Art. 356 (1) remains in force is not conterminous with the duration of the Proclamation. It has not been disputed that the President was competent under clause (1) of Article 356 of the Constitution to enact Act. No. 19 of 1970. The said Act, in view of the provisions of cl. (2) of Article 357, shall continue to remain in force in spite of the revocation of the proclamation dated March 19, 1970 and would cease to have effect only on the expiry of one year after the proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions of the Act are sooner repealed or re-enacted with or without modification by Act of the appropriate Legislature. As the aforesaid period of one year has not expired and as the provisions of the act have not been repealed or re-enacted with or without modification by Act of the appropriate Legislature, the impugned Act should be held to be still in force6. In view of our finding that the Act (Act No. 19 of 1970) is still in force, it is not necessary to consider the question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in accordance with Article 357 (2) of the Constitution7. Argument has then been advanced by Mr. Puri that the impugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention, Section 10 reads as under:-"10. In every case where a detention order has been made under this Act, the State Government shall with- in thirty days from the date of detention under the order, place before the Advisory Board, constituted by it under section 9, the grounds on which the order has been made and the representation, if any made by the person affected by the order, and in case where the order has been made by an officer specified in sub-section (3) of section 3, also the report made by such officer under sub-section (4) of section 3."It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the Explosives Substances Act, 1908 when the commission of such offence disturbs or is likely to disturb public order. Particulars supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S. D. O. Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of cl. (d) of sub-section (2) of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d).The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing the public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain a person with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed.
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Saibaba Castings Private Limited Vs. State | 10 each (fully paid-up) for 10 shares of Rs. 10 each (fully paid-up) held by the member concerned of the transferee company is sought to be increased as set out in the said scheme. The transferee company has agreed to discharge all the liabilities of the transferor company and has agreed to take over all the employees of the transferor company willing to join the transferee company. ( 3 ) ALL the members of the transferor company have given their consent in writing in respect of the scheme of arrangement and amalgamation exhibit c, to both the petitions. Notices have been published in the various newspapers inviting those who are interested in supporting or opposing to remain present before the court. ( 4 ) ORIENTAL Bank of Commerce is the secured creditor of the transferor company as well as the transferee company. ( 5 ) ON October 8, 1994, a meeting of the secured creditors of the transferor company was held as directed by the court. The scheme was adopted by the meeting of the secured creditors of the transferor company. ( 6 ) ON October 8, 1994, a meeting of the unsecured creditors of the transferor company was also held as directed by the court. The said meeting was attended by 29 unsecured creditors through their proxies. The resolution proposing. The chairman of the transferor company has filed his report on affidavit being report dated October 24, 1994. ( 7 ) THE official liquidator has submitted his report in writing being report dated August 8, 1995, as contemplated under the second proviso to section 394 (1) of the Companies Act, 1956. The official liquidator has made the said report in the light of the report of the auditors who are appointed by the official liquidator to scrutinise the audited accounts of the transferor company for the period of five years ended March 31, 1994. The said report is favorable to the petitioners. The affairs of the transferor company have not been conducted in a manner prejudicial to the interest of its members or to the public interest. ( 8 ) THE State Industrial and Investment Corporation of Maharashtra Limited (i. e. SICOM) has given its approval is respect of the proposed scheme of amalgamation of the transferor company, i. e. , Shri Saibaba Castings Pvt. Ltd. with the transferee company, i. e. , Kamanwala Industries Ltd. on the condition that the approvals of financial institution/banks should also be obtained in respect of the proposed amalgamation. ( 9 ) BY an order passed by this court on August 4, 1994, on Company Application No. 251 of 1994 filed by the transferee company it was directed that the meetings of the members as well as the secured and unsecured creditors of the transferee company be convened for considering and if thought fit approving the scheme of arrangement and amalgamation of Shri Saibaba Castings pvt. Ltd. with Kamanwala Housing Development Finance Company Limited. The shareholders of the transferee company have unanimously approved the scheme. The unsecured creditors of the transferee company have also unanimously approved the scheme. ( 10 ) A meeting of the secured creditors of the transferee company was convened on October 8, 1994. It appears that there are two secured creditors of the transferee company, i. e. , (1) Oriental bank of Commerce, (2) Punjab National Bank. The Oriental Bank of Commerce approved the scheme. The Punjab National Bank did not approve the scheme. ( 11 ) THUS, the scheme of amalgamation was opposed initially by the Punjab National Bank. The punjab National Bank had sanctioned the short-term loan of Rs. 50 lakhs in favour of the transferee company subject to certain conditions. Kamanwala Industries Ltd. , the transferee company, had executed an equitable mortgage in favour of the Punjab National Bank in this behalf on January 23, 1989. A sum of Rs. 19,63,000 was disbursed by he Punjab National Bank in favour of the transferee company. The Punjab National Bank wanted its dues to be cleared by the transferee company expeditiously and from this point of view it appears to have opposed the proposed scheme of amalgamation. ( 12 ) I am happy to record that the controversy between Kamanwala Industries Ltd. and the punjab National Bank is mutually sorted out. The transferee company as well as the Punjab national Bank have arrived at certain consent terms. In substance, the transferee company has agreed to pay the balance of Rs. 25,20,000 to the Punjab National Bank on or before March 31, 1996, alongwith interest, etc. , more particularly set out in the consent terms filed before the court. The consent proposal made on behalf of the transferee company and the Punjab National bank is quite reasonable. The scheme, exhibit c, to the petition is modified in terms of the consent terms arrived at between Kamanwala Industries Ltd. and the Punjab National Bank duly signed by the parties as modified for its final sanction. Thus, the objection to the scheme urged by the Punjab National Bank, one of the secured creditors, no longer subsists. ( 13 ) THE only objection which now survives for consideration of the court is as to the objection raised on behalf of the Regional Director as set out in the affidavit of Shri M. L. Shah dated august 30, 1995. The Regional Director has opposed the scheme on the ground that the entire paid-up capital of the transferor company has already been eroded and the balance-sheet of the transferor company indicates that the transferor company has accumulated losses to the extent of four times of its paid-up capital. In my opinion, there is no merit in this objection. If the transferor company is amalgamated with the transferee company which is undoubtedly a sound and healthy company no public interest it likely to suffer particularly when the transferee company has undertaken to discharge all the liabilities of the transferor company. I have no hesitation in overruling the objection raised on behalf of the Regional Director. | 1[ds]( 12 ) I am happy to record that the controversy between Kamanwala Industries Ltd. and the punjab National Bank is mutually sorted out. The transferee company as well as the Punjab national Bank have arrived at certain consent terms. In substance, the transferee company has agreed to pay the balance of Rs. 25,20,000 to the Punjab National Bank on or before March 31, 1996, alongwith interest, etc. , more particularly set out in the consent terms filed before the court. The consent proposal made on behalf of the transferee company and the Punjab National bank is quite reasonable. The scheme, exhibit c, to the petition is modified in terms of the consent terms arrived at between Kamanwala Industries Ltd. and the Punjab National Bank duly signed by the parties as modified for its final sanction. Thus, the objection to the scheme urged by the Punjab National Bank, one of the secured creditors, no longer subsists.( 13 ) THE only objection which now survives for consideration of the court is as to the objection raised on behalf of the Regional Director as set out in the affidavit of Shri M. L. Shah dated august 30, 1995. The Regional Director has opposed the scheme on the ground that the entirep capital of the transferor company has already been eroded and thet of the transferor company indicates that the transferor company has accumulated losses to the extent of four times of itsp capital. In my opinion, there is no merit in this objection. If the transferor company is amalgamated with the transferee company which is undoubtedly a sound and healthy company no public interest it likely to suffer particularly when the transferee company has undertaken to discharge all the liabilities of the transferor company. I have no hesitation in overruling the objection raised on behalf of the Regional Director. | 1 | 1,212 | 336 | ### 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:
10 each (fully paid-up) for 10 shares of Rs. 10 each (fully paid-up) held by the member concerned of the transferee company is sought to be increased as set out in the said scheme. The transferee company has agreed to discharge all the liabilities of the transferor company and has agreed to take over all the employees of the transferor company willing to join the transferee company. ( 3 ) ALL the members of the transferor company have given their consent in writing in respect of the scheme of arrangement and amalgamation exhibit c, to both the petitions. Notices have been published in the various newspapers inviting those who are interested in supporting or opposing to remain present before the court. ( 4 ) ORIENTAL Bank of Commerce is the secured creditor of the transferor company as well as the transferee company. ( 5 ) ON October 8, 1994, a meeting of the secured creditors of the transferor company was held as directed by the court. The scheme was adopted by the meeting of the secured creditors of the transferor company. ( 6 ) ON October 8, 1994, a meeting of the unsecured creditors of the transferor company was also held as directed by the court. The said meeting was attended by 29 unsecured creditors through their proxies. The resolution proposing. The chairman of the transferor company has filed his report on affidavit being report dated October 24, 1994. ( 7 ) THE official liquidator has submitted his report in writing being report dated August 8, 1995, as contemplated under the second proviso to section 394 (1) of the Companies Act, 1956. The official liquidator has made the said report in the light of the report of the auditors who are appointed by the official liquidator to scrutinise the audited accounts of the transferor company for the period of five years ended March 31, 1994. The said report is favorable to the petitioners. The affairs of the transferor company have not been conducted in a manner prejudicial to the interest of its members or to the public interest. ( 8 ) THE State Industrial and Investment Corporation of Maharashtra Limited (i. e. SICOM) has given its approval is respect of the proposed scheme of amalgamation of the transferor company, i. e. , Shri Saibaba Castings Pvt. Ltd. with the transferee company, i. e. , Kamanwala Industries Ltd. on the condition that the approvals of financial institution/banks should also be obtained in respect of the proposed amalgamation. ( 9 ) BY an order passed by this court on August 4, 1994, on Company Application No. 251 of 1994 filed by the transferee company it was directed that the meetings of the members as well as the secured and unsecured creditors of the transferee company be convened for considering and if thought fit approving the scheme of arrangement and amalgamation of Shri Saibaba Castings pvt. Ltd. with Kamanwala Housing Development Finance Company Limited. The shareholders of the transferee company have unanimously approved the scheme. The unsecured creditors of the transferee company have also unanimously approved the scheme. ( 10 ) A meeting of the secured creditors of the transferee company was convened on October 8, 1994. It appears that there are two secured creditors of the transferee company, i. e. , (1) Oriental bank of Commerce, (2) Punjab National Bank. The Oriental Bank of Commerce approved the scheme. The Punjab National Bank did not approve the scheme. ( 11 ) THUS, the scheme of amalgamation was opposed initially by the Punjab National Bank. The punjab National Bank had sanctioned the short-term loan of Rs. 50 lakhs in favour of the transferee company subject to certain conditions. Kamanwala Industries Ltd. , the transferee company, had executed an equitable mortgage in favour of the Punjab National Bank in this behalf on January 23, 1989. A sum of Rs. 19,63,000 was disbursed by he Punjab National Bank in favour of the transferee company. The Punjab National Bank wanted its dues to be cleared by the transferee company expeditiously and from this point of view it appears to have opposed the proposed scheme of amalgamation. ( 12 ) I am happy to record that the controversy between Kamanwala Industries Ltd. and the punjab National Bank is mutually sorted out. The transferee company as well as the Punjab national Bank have arrived at certain consent terms. In substance, the transferee company has agreed to pay the balance of Rs. 25,20,000 to the Punjab National Bank on or before March 31, 1996, alongwith interest, etc. , more particularly set out in the consent terms filed before the court. The consent proposal made on behalf of the transferee company and the Punjab National bank is quite reasonable. The scheme, exhibit c, to the petition is modified in terms of the consent terms arrived at between Kamanwala Industries Ltd. and the Punjab National Bank duly signed by the parties as modified for its final sanction. Thus, the objection to the scheme urged by the Punjab National Bank, one of the secured creditors, no longer subsists. ( 13 ) THE only objection which now survives for consideration of the court is as to the objection raised on behalf of the Regional Director as set out in the affidavit of Shri M. L. Shah dated august 30, 1995. The Regional Director has opposed the scheme on the ground that the entire paid-up capital of the transferor company has already been eroded and the balance-sheet of the transferor company indicates that the transferor company has accumulated losses to the extent of four times of its paid-up capital. In my opinion, there is no merit in this objection. If the transferor company is amalgamated with the transferee company which is undoubtedly a sound and healthy company no public interest it likely to suffer particularly when the transferee company has undertaken to discharge all the liabilities of the transferor company. I have no hesitation in overruling the objection raised on behalf of the Regional Director.
### Response:
1
### Explanation:
( 12 ) I am happy to record that the controversy between Kamanwala Industries Ltd. and the punjab National Bank is mutually sorted out. The transferee company as well as the Punjab national Bank have arrived at certain consent terms. In substance, the transferee company has agreed to pay the balance of Rs. 25,20,000 to the Punjab National Bank on or before March 31, 1996, alongwith interest, etc. , more particularly set out in the consent terms filed before the court. The consent proposal made on behalf of the transferee company and the Punjab National bank is quite reasonable. The scheme, exhibit c, to the petition is modified in terms of the consent terms arrived at between Kamanwala Industries Ltd. and the Punjab National Bank duly signed by the parties as modified for its final sanction. Thus, the objection to the scheme urged by the Punjab National Bank, one of the secured creditors, no longer subsists.( 13 ) THE only objection which now survives for consideration of the court is as to the objection raised on behalf of the Regional Director as set out in the affidavit of Shri M. L. Shah dated august 30, 1995. The Regional Director has opposed the scheme on the ground that the entirep capital of the transferor company has already been eroded and thet of the transferor company indicates that the transferor company has accumulated losses to the extent of four times of itsp capital. In my opinion, there is no merit in this objection. If the transferor company is amalgamated with the transferee company which is undoubtedly a sound and healthy company no public interest it likely to suffer particularly when the transferee company has undertaken to discharge all the liabilities of the transferor company. I have no hesitation in overruling the objection raised on behalf of the Regional Director.
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State of Mysore and Another Vs. R. Basappa and Others | Fazal Ali, J. 1. These appeals by special leave at the instance of the State of Karnataka are directed against the judgments of the High Court of Karnataka allowing the writ petitions filed by the respondents. 2. The facts are given in the judgments of the High Court and it is not necessary to repeat them. 3. The central controversy which was mooted in this case was as to whether or not the respondents who were 1st Division Clerks could be promoted as Head Accountants without passing the S.A.S. examination as required by rules framed by the Mysore Government and called "The General Service (Treasury Bench) (Recruitment) Rules, 1961" which were amended with effect from June 1, 1961 by the Mysore General Service (Treasury Bench) (Recruitment) (Special) Rules, 1961. There is no doubt that having regard to the length of service, the respondents were the seniormost clerks and had therefore been promoted to the cadre of the Head Accountants. It was contended by the respondents before the High Court that the rules regarding the passing of the S.A.S. examination were invalid because they were framed by the State Government without obtaining the concurrence of the Central Government as required by the provisions of the States Reorganisation Act. 4. The High Court accepted the contention of the respondents and observed as follows : "In the present case no such approval to the imposition of the passing of S.A.S. examination has been obtained and the petitioner therefore cannot be said to have suffered from any disability till his promotion on January 9, 1962. Rule 4 therefore does not affect the seniority of the petitioner even in the promotional cadre." 5. It was conceded by Mr. Veerappa, learned counsel for the appellants that before framing the rules in question, no prior approval of the Central Government was in fact obtained in any manner; but the contended that no such approval was necessary because the rules were framed under Article 309 of the Constitution. This matter fell for consideration by a Constitution Bench of this Court which, while construing the provisions of Section 7 of the States Reorganisation Act, observed as follows in N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore (AIR 1965 SC 136 : (1964) 7 SCR 549 : (1965) 1 SCJ 327) : The expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to Section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval..... The broad purpose underlying the proviso to Section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government. 6. It is thus manifest that after the States were reorganised, while the State Government was free to make any rules under Article 309 of the Constitution, yet before the same could have any legal effect, the prior approval of the Central Government had to be obtained. This statutory requirement not having been complied with in the present case, there was no obligation on the part of the respondents to pass the S.A.S. examination before being promoted as Head Accountants. Therefore, we entirely agree with the view taken by the High Court and | 0[ds]It has to be remembered that Article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to Section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval..... The broad purpose underlying the proviso to Section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government6. It is thus manifest that after the States were reorganised, while the State Government was free to make any rules under Article 309 of the Constitution, yet before the same could have any legal effect, the prior approval of the Central Government had to be obtained. This statutory requirement not having been complied with in the present case, there was no obligation on the part of the respondents to pass the S.A.S. examination before being promoted as Head Accountants. Therefore, we entirely agree with the view taken by the High Court | 0 | 685 | 223 | ### Instruction:
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Fazal Ali, J. 1. These appeals by special leave at the instance of the State of Karnataka are directed against the judgments of the High Court of Karnataka allowing the writ petitions filed by the respondents. 2. The facts are given in the judgments of the High Court and it is not necessary to repeat them. 3. The central controversy which was mooted in this case was as to whether or not the respondents who were 1st Division Clerks could be promoted as Head Accountants without passing the S.A.S. examination as required by rules framed by the Mysore Government and called "The General Service (Treasury Bench) (Recruitment) Rules, 1961" which were amended with effect from June 1, 1961 by the Mysore General Service (Treasury Bench) (Recruitment) (Special) Rules, 1961. There is no doubt that having regard to the length of service, the respondents were the seniormost clerks and had therefore been promoted to the cadre of the Head Accountants. It was contended by the respondents before the High Court that the rules regarding the passing of the S.A.S. examination were invalid because they were framed by the State Government without obtaining the concurrence of the Central Government as required by the provisions of the States Reorganisation Act. 4. The High Court accepted the contention of the respondents and observed as follows : "In the present case no such approval to the imposition of the passing of S.A.S. examination has been obtained and the petitioner therefore cannot be said to have suffered from any disability till his promotion on January 9, 1962. Rule 4 therefore does not affect the seniority of the petitioner even in the promotional cadre." 5. It was conceded by Mr. Veerappa, learned counsel for the appellants that before framing the rules in question, no prior approval of the Central Government was in fact obtained in any manner; but the contended that no such approval was necessary because the rules were framed under Article 309 of the Constitution. This matter fell for consideration by a Constitution Bench of this Court which, while construing the provisions of Section 7 of the States Reorganisation Act, observed as follows in N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore (AIR 1965 SC 136 : (1964) 7 SCR 549 : (1965) 1 SCJ 327) : The expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to Section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval..... The broad purpose underlying the proviso to Section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government. 6. It is thus manifest that after the States were reorganised, while the State Government was free to make any rules under Article 309 of the Constitution, yet before the same could have any legal effect, the prior approval of the Central Government had to be obtained. This statutory requirement not having been complied with in the present case, there was no obligation on the part of the respondents to pass the S.A.S. examination before being promoted as Head Accountants. Therefore, we entirely agree with the view taken by the High Court and
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It has to be remembered that Article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to Section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval..... The broad purpose underlying the proviso to Section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government6. It is thus manifest that after the States were reorganised, while the State Government was free to make any rules under Article 309 of the Constitution, yet before the same could have any legal effect, the prior approval of the Central Government had to be obtained. This statutory requirement not having been complied with in the present case, there was no obligation on the part of the respondents to pass the S.A.S. examination before being promoted as Head Accountants. Therefore, we entirely agree with the view taken by the High Court
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Commissioner of Wealth Tax Vs. Dr. Karan Singh & Others | held by them. As explained in Assistant Commissioner of Urban Land Tax v. Buckingham Carnatic Co. Ltd. ... It is not a tax directly on the capital value of the assets of individuals and companies on the valuation date... The tax under Entry 86 proceeds on the principle of aggregation and is imposed on the totality of the value of all the assets. It is imposed on the total assets which the assessee owns and in determining the net wealth, not only the encumbrances specifically charged against any item of assets but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account. * This was also the view expressed in Nawn 27. The language of Entry 86 also clearly indicates that the tax is upon the individuals and not directly upon the assets or upon their value. The wealth tax is determined with reference to the capital value of the assets minus the debts and other deductions mentioned in the Act. We cannot accept the argument that since the tax is contemplated to be levied upon the capital value of the assets of an individual, the exclusion of his debts and other liabilities changes the nature and character of the tax. Indeed, the learned counsel for the respondents could not suggest any enactment relatable to Entry 86 except the Wealth Tax Act 28. It is argued for the respondents that capital value of the assets on a true interpretation can only mean market value of the assets minus any encumbrances charged upon the assets themselves. The expression does not take in, it is submitted, general liabilities of the person owning them. This argument, in our opinion, ignores the basic nature of the tax contemplated by Entry 86. It is a tax upon the net wealth of an individual. It is a net-wealth tax. Net wealth of an individual necessarily means what all he owns minus what all he owes - and this is what the Act purports to tax 29. Mr. Sorabjee relied upon the decisions of the Bombay High Court in Sir Byramjee Jeejeebhoy v. Province of Bombay and Municipal Corporation, Ahmedabad v. Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ). In the first case, the question was whether the Bombay Finance Act, 1932 which levied tax upon urban immovable property was outside the competence of the Bombay Legislature on the ground that the tax levied was one in the nature of Income Tax Act relatable to Entry 54 of the Federal List in VII Schedule to the Government of India Act, 1935. All the three Judges constituting the Full Bench repelled the said argument. In the course of their discussion they also referred to Entry 55 of the Federal List; but that aspect did not arise in that case and, therefore, any passing observation made with respect to the content of the said entry cannot be of any assistance to us in this case. Similarly, in Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ) the question was with respect to the power of the Bombay Municipal Corporation to levy tax on land. The petitioners contentions were that the said tax falls outside Entry 42 of List II of VII Schedule to the 1935 Act (corresponding to Entry 49 of List II of our Constitution) and that the tax on land imposed by the said Act is really in the nature of tax contemplated by Entry 55 of the Federal List. Reliance was placed upon the decision in Byramjee case. The said argument was dealt with by Gajendragadkar, J. (as he then was) in the following words I have dealt with this question on the assumption that Entry 55 in List I confers jurisdiction on the Central Legislature to levy a tax on the capital value, not only of all the assets, but of even a part of the assets. In Byramjee case a Full Bench of this Court had to consider the construction of Entry 54 in List I as against Entry 42 in List II. Incidentally an argument was urged before the Full Bench even as to Entry 55 in List I. Chief Justice Beaumont said that it was unnecessary to consider the argument based on Entry 55; but, nevertheless, he observed that an analysis of the language employed in Entries 54 and 55 respectively affords scope for the argument that the assets mentioned in Entry 55 must mean the totality of the assets. According to Mr. Justice Broomfield, the meaning of the expression capital value of the assets in Entry 55 was by no means clear. He, however, added that it may be that what was intended was a tax on the total value of the assets in the nature of a capital levy. Mr. Justice Kania, on the other hand, expressed his clear opinion that under Entry 55 the tax should be on the total capital assets and not on individual portions of a persons capital. * It was held that the said earlier decision in no manner supported the assessees contention 30. Lastly, reference was made to the decision of this Court in New Manek Chowk Spng. & Wvg. Mills Co. Ltd. v. Municipal Corporation. In that case, it was held by this Court that Entry 49 in List II of VII Schedule permits levy of tax on lands and buildings but not on machinery installed on land or in the building. It was held that Rule 7(2) of the Rules framed under Bombay Provincial Municipal Corporation Act, 1949 which provided that all plant and machinery contained or situated in any building or land shall be deemed to form part of such building or land was held to be beyond the legislative competence of the State. We are unable to see how the principle of this decision is of any assistance to the respondents herein 31. | 1[ds]As mentioned earlier, the challenge in Dhillon case was limited to Section 24 of the Finance Act, 1969 insofar it amended the relevant provisions of the Wealth Tax Act, 1957. Initially the value of agricultural land was exempt from the charge of wealth tax. The exemption was withdrawn by this amendment. This was challenged as ultra vires by the assessee H. S. Dhillon and the High Court agreed with him. The judgment was appealed against by the Union of India. Mr. Setalvad, appearing in support of the appeal, contended that the impugned Act was not a law with respect to any Entry (including Entry 49) in List II and if this was so it must necessarily fall within the legislative competence of Parliament. He reminded the Court that the Parliament was competent to legislate with respect to Entry 86 read with Entry 97 or Entry 97 by itself read with Article 248 of the Constitution. The argument was being addressed, pointedly with reference to the impugned Act i.e., the Finance Act, 1969. Mr. Setalvad urged that the proper way of testing the validity of a parliamentary statute in our Constitution was first to see whether the parliamentary legislature was with respect to a matter or tax mentioned in List II; if it was not, no other question would arise. This approach was taken note of by the judgment of Sikri, C.J. in the last paragraph of page 45 and second paragraph at page 46 of the Supreme Court Reports. (SCC p. 787, paras 8 and 10). The judgment read as a whole including the passage, which has been relied upon by Mr. Sorabjee, in our view leads to the irresistible conclusion that Sikri, C.J. accepted the line suggested by Mr. Setalvad and, therefore, it did not remain necessary for the learned Chief Justice to express a final opinion as to the particular Entry covering the Wealth Tax ActIn his learned judgment, Sikri, C.J. considered the constitutional scheme specially with reference to Articles 246, 248, 250 and 253 and Section 104 of the Government of India Act, 1935. While considering the Constituent Assembly Debates and other relevant documents dealing with the process which ultimately led to the making of the Constitution as it was finally adopted the following interpretation of Dr. B. R. Ambedkar was specially referred toAnything not included in List II or III shall be deemed to fall in List IBesides, constitutions of several foreign countries as also many decisions were discussed and the conclusion reached in the following words at page 72-G of the Reports : (SCC p. 807, para 82)In our view the High Court was right in holding that the impugned Act was not a law with respect to Entry 49 List II, or did not impose a tax mentioned in Entry 49 List II. If that is so, then the legislation is valid either under Entry 86 List I, read with Entry 97 List I, or Entry 97 List I, standing by itself. *It was only after arriving at the conclusion finally that the question whether the impugned Act (we will prefer to call it as the Finance Act, 1969) fell within Entry 86 List I, read with Entry 97 List I, or Entry 97 List I alone, was adverted to; and while so doing the fact that it was necessary to decide this issue was taken note of. Mr. Sorabjee is right that the observations in this part of the judgment from p. 73-G to p. 74-E (SCC pp. 807-08, paras 83 to 86) were made in view of the judgment of Shelat, J. on Entry 86, and these observations were critical of the minority view on Entry 86, but the respondents before us are failing to appreciate that a critical comment made on a certain statement does not, in absence of an expression to that effect, necessarily lead to the inference that the converse is true. It may mean that the statement requires further consideration or that the grounds given in support of the statement are fallacious or inadequate or that the matter requires a fuller examination and until that is done, the assumed correctness of the statement cannot be accepted.The basic rules of interpreting Court judgments are the same as those of construing other documents. The only difference is that the judges are presumed to know the tendency of parties concerned to interpret the language in the judgments differently to suit their purposes and the consequent importance that the words have to be chosen very carefully so as not to give room for controversy. The principle is that if the language in a judgment is plain and unambiguous and can be reasonably interpreted in only one way it has to be understood in that sense, and any involved principle of artificial construction has to be avoided. Further, if there be any doubt about the decision, the entire judgment has to be considered, and a stray sentence or a casual remark cannot be treated as a decision. Examined in this light, the judgment of learned Chief Justice indicates that the main question agitating him mind was - if levy of wealth tax on agricultural land is not within the purview of List II, if it is not warranted by any Entry in List III and if it is also not within the purview of Entry 86 of List I, then which is the authority competent to levy it ? Evidently, there cannot be a subject-matter or tax, which no legislature under the Constitution can levy. Accordingly, he held, the said tax is warranted by Entry 97 of List I read with Article 248. The question, whether the Wealth Tax Act (without reference to the impugned Finance Act, 1969) falls within Entry 86 did not arise for consideration and was not answered but left undetermined, by the learned Chief Justice, though Mitter, J., did certainly express himself on it. A reference to other parts of the very passage relied upon by Mr. Sorabjee as indicated below, will be helpfulAt the cost of repetition we would like to point out that the impugned Act was the 1969 Amendment Act. The distinction between the Amendment Act and the original Wealth Tax Act was always present in the mind of the learned Chief Justice as is clear from the very next sentence, which reads thusWe may mention that this Court has never held that the original Wealth Tax Act fell under Entry 86 List I. It was only assumed that the original Wealth Tax fell within Entry 86 List I and on that assumption this entry was analysed and contrasted with Entry 49 List II. *Mr. Sorabjee laid great emphasis on the above sentences and urged that an inference should be drawn therefrom about the majority view holding that Entry 86 was not attracted. We do not agree with him. In his judgment Shelat, J. had referred to several decisions in favour of holding Entry 86 applicable and the last sentence quoted above, was only a comment on that part of the judgment. Besides, there is further indication given in the very next sentence, which, in our view, reiterates the conclusion already reached and recorded at page 72-G (quoted above) and that is in the following words : (SCC p. 807, para 82)Be that as it may, we are clearly of the opinion that no part of the impugned legislation falls within Entry 86 List IIn the next paragraph the permissibility of the Parliament combining its powers under Entry 86 with its powers under Entry 97 was considered and answered in the affirmative. This was apparently the conclusion made at page 72-G (SCC p. 807, para 82) (quoted above) that the legislation should be held to be valid under Entry 86 List I, read with Entry 97 List IWe, therefore, hold that the issue, whether the Wealth Tax Act, 1957 falls in Entry 86 or not, was not finally decided in the judgment of Sikri, C.J., and was left open for future when such an occasion arose. While so doing certain observations critical to the views of Shelat, J. were expressed but merely on account of this, Dhillon judgment cannot be treated to be a binding precedent preventing this Bench from considering the main issue on meritsThe position, therefore, is that the issue as to whether the Wealth Tax Act, 1957 (without amendment Act, 1969, as it has been conceded on behalf of the appellant to be inapplicable to the State of Jammu and Kashmir), extends to the State of Jammu and Kashmir or not, is, as mentioned earlier, dependent on the question whether the Act falls under Entry 86, List I quoted in paragraph 3 above or not. The residuary power in the case of Jammu and Kashmir is with the State and the cases relied upon by the parties are of no helpThe argument of Mr. Sorabjee is that the expression capital value of assets in Entry 86 does not signify the same thing as net wealth as defined in Wealth Tax Act. For calculating the capital value of assets only the encumbrances which are charged on the assets, can be deducted from the market value of the assets, and not the general liabilities of the individual owning the assets, which are to be taken into account for the purpose of wealth tax. Adopting the observations of H. J. Kania, J. (as he then was) in Sir Byramjee Jeejeebhoy v. Province of Bombay it was asserted that under Entry 86, the tax should be on the total capital assets and not on individual portions of a persons capital. In Sir Byramjee case the relevant entry was Entry 55 in List I of the Government of India Act, 1935, similar to the present Entry 86. The learned counsel pointed out that Bombay decision was approved by the Federal Court in Ralla Ram v. Province of East Punjab. Reference was also made to the judgment in Municipal Commr., Municipal Corpn. of the City of Ahmedabad v. Gordhandas Hargovandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ). In support of his stand that Wealth Tax Act is covered by Entry 86 Dr. Gauri Shankar took us through the background in which the Wealth Tax Act was enacted. He placed before us the legislative practice in other countries also as reported by OECD Committee on Fiscal Affairs and the discussion by Kaldor in his book Indian Tax Reforms. Dealing with the deductions which are allowed under the Wealth Tax Act for liabilities and debts, the learned counsel proceeded to say that that is methodology of levy of this form of capital taxation adopted internationallyn the next paragraph of the Report, the enquiry of allowing debts not related to the acquisition of assets is also discussed. The learned counsel summed up by saying that the substance of the practice adopted in other countries and the economic concept underlying the theory of equi-marginal sacrifice, which is called the ability to pay, is that there will be no true measure of a persons net worth unless from the gross aggregate capital value, deductions are given for liabilities and debts, and that is the rationale of Entry 86 as also that of the Wealth Tax ActWe must, therefore, ascertain the correct nature of the tax under the Wealth Tax Act and the scope of Entry 86 by reference to the expressions capital value and assets. It is firmly established that in construing the language of constitutional enactments conferring legislative power the most liberal construction should be put upon the words so that the same have effect in their widest amplitude. (See Navinchandra Mafatlal v. CIT. In Sri Ram Ram Narain Medhi v. State of Bombay his Court followed the approach indicated by the Privy Council in British Coal Corporation v. The King ( 1935 AC 500, 518 : 104 LJPC 58 : 1935 AIR(PC) 158)t is also settled that for finding out the true nature and character of a taxing Act, the charging section has to be construed with the help of other relevant provisions. In the case of the Wealth Tax Act Sections 3 to 7 read with Sections 2(e) and 2(m) have to be examined. Section 3 levies an annual tax in respect of the net wealth on the valuation date on every individual etc. at the rate specified in the schedule. Section 7 mandates that the value for the purpose of charge shall be the value estimated to be the price which in the opinion of the assessing officer it would fetch if sold in the open market on the valuation date. The expression net wealth is defined in Section 2(m) as the amount by which the aggregate value computed in accordance with the prescribed provisions, is in excess of the aggregate value of all the debts owned by the assessee. Thus it appears that the tax is an annual levy on the total value of all assets owned by an assessee excluding exempted properties. Such value is the price which the property would fetch if sold in the market; in other words its capital value. From the capital value, certain liabilities and debts are to be deducted to arrive at the net wealth. The base of the tax is capital value and net wealth assessable is capital value after deductions of debts and liabilitiesAccording to the learned Chief Justice it is not incumbent on Parliament to provide for deduction of debts in ascertaining the capital value of the assets. But, having said so, the learned Chief Justice does not proceed further and say that such deduction, if provided, changes the character of tax from a tax on capital value to something else. Indeed, on principle, such a statement could not have been made or supported. The learned Chief Justice repeatedly stated that the Parliament or the legislature need not provide for such deductions, but without carrying the thought to its logical conclusion, concluded that the whole of the impugned Act (which as pointed out hereinbefore means the Act 24 of 1969 amending the Wealth Tax Act) clearly falls within Entry 97 of List I. We have already indicated in paragraph 16 earlier that the expression the whole of the impugned Act; did not refer to the wealth tax as originally enacted. We are, therefore, of the opinion that the Wealth Tax Act (as originally enacted and extended to J&K) is a net-wealth tax Act imposed upon the individuals, group of individuals like HUF and companies. The Tax is not upon the assets as such but is upon the individual and companies with reference to the capital value of the assets held by them. As explained in Assistant Commissioner of Urban Land Tax v. Buckingham Carnatic Co. LtdThe language of Entry 86 also clearly indicates that the tax is upon the individuals and not directly upon the assets or upon their value. The wealth tax is determined with reference to the capital value of the assets minus the debts and other deductions mentioned in the Act. We cannot accept the argument that since the tax is contemplated to be levied upon the capital value of the assets of an individual, the exclusion of his debts and other liabilities changes the nature and character of the tax. Indeed, the learned counsel for the respondents could not suggest any enactment relatable to Entry 86 except the Wealth Tax ActIt is argued for the respondents that capital value of the assets on a true interpretation can only mean market value of the assets minus any encumbrances charged upon the assets themselves. The expression does not take in, it is submitted, general liabilities of the person owning them. This argument, in our opinion, ignores the basic nature of the tax contemplated by Entry 86. It is a tax upon the net wealth of an individual. It is a net-wealth tax. Net wealth of an individual necessarily means what all he owns minus what all he owes - and this is what the Act purports to taxMr. Sorabjee relied upon the decisions of the Bombay High Court in Sir Byramjee Jeejeebhoy v. Province of Bombay and Municipal Corporation, Ahmedabad v. Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ). In the first case, the question was whether the Bombay Finance Act, 1932 which levied tax upon urban immovable property was outside the competence of the Bombay Legislature on the ground that the tax levied was one in the nature of Income Tax Act relatable to Entry 54 of the Federal List in VII Schedule to the Government of India Act, 1935. All the three Judges constituting the Full Bench repelled the said argument. In the course of their discussion they also referred to Entry 55 of the Federal List; but that aspect did not arise in that case and, therefore, any passing observation made with respect to the content of the said entry cannot be of any assistance to us in this case. Similarly, in Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ) the question was with respect to the power of the Bombay Municipal Corporation to levy tax on land. The petitioners contentions were that the said tax falls outside Entry 42 of List II of VII Schedule to the 1935 Act (corresponding to Entry 49 of List II of our Constitution) and that the tax on land imposed by the said Act is really in the nature of tax contemplated by Entry 55 of the Federal List. Reliance was placed upon the decision in Byramjee caseLastly, reference was made to the decision of this Court in New Manek Chowk Spng. & Wvg. Mills Co. Ltd. v. Municipal Corporation. In that case, it was held by this Court that Entry 49 in List II of VII Schedule permits levy of tax on lands and buildings but not on machinery installed on land or in the building. It was held that Rule 7(2) of the Rules framed under Bombay Provincial Municipal Corporation Act, 1949 which provided that all plant and machinery contained or situated in any building or land shall be deemed to form part of such building or land was held to be beyond the legislative competence of the State. We are unable to see how the principle of this decision is of any assistance to the respondents herein | 1 | 8,850 | 3,378 | ### Instruction:
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held by them. As explained in Assistant Commissioner of Urban Land Tax v. Buckingham Carnatic Co. Ltd. ... It is not a tax directly on the capital value of the assets of individuals and companies on the valuation date... The tax under Entry 86 proceeds on the principle of aggregation and is imposed on the totality of the value of all the assets. It is imposed on the total assets which the assessee owns and in determining the net wealth, not only the encumbrances specifically charged against any item of assets but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account. * This was also the view expressed in Nawn 27. The language of Entry 86 also clearly indicates that the tax is upon the individuals and not directly upon the assets or upon their value. The wealth tax is determined with reference to the capital value of the assets minus the debts and other deductions mentioned in the Act. We cannot accept the argument that since the tax is contemplated to be levied upon the capital value of the assets of an individual, the exclusion of his debts and other liabilities changes the nature and character of the tax. Indeed, the learned counsel for the respondents could not suggest any enactment relatable to Entry 86 except the Wealth Tax Act 28. It is argued for the respondents that capital value of the assets on a true interpretation can only mean market value of the assets minus any encumbrances charged upon the assets themselves. The expression does not take in, it is submitted, general liabilities of the person owning them. This argument, in our opinion, ignores the basic nature of the tax contemplated by Entry 86. It is a tax upon the net wealth of an individual. It is a net-wealth tax. Net wealth of an individual necessarily means what all he owns minus what all he owes - and this is what the Act purports to tax 29. Mr. Sorabjee relied upon the decisions of the Bombay High Court in Sir Byramjee Jeejeebhoy v. Province of Bombay and Municipal Corporation, Ahmedabad v. Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ). In the first case, the question was whether the Bombay Finance Act, 1932 which levied tax upon urban immovable property was outside the competence of the Bombay Legislature on the ground that the tax levied was one in the nature of Income Tax Act relatable to Entry 54 of the Federal List in VII Schedule to the Government of India Act, 1935. All the three Judges constituting the Full Bench repelled the said argument. In the course of their discussion they also referred to Entry 55 of the Federal List; but that aspect did not arise in that case and, therefore, any passing observation made with respect to the content of the said entry cannot be of any assistance to us in this case. Similarly, in Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ) the question was with respect to the power of the Bombay Municipal Corporation to levy tax on land. The petitioners contentions were that the said tax falls outside Entry 42 of List II of VII Schedule to the 1935 Act (corresponding to Entry 49 of List II of our Constitution) and that the tax on land imposed by the said Act is really in the nature of tax contemplated by Entry 55 of the Federal List. Reliance was placed upon the decision in Byramjee case. The said argument was dealt with by Gajendragadkar, J. (as he then was) in the following words I have dealt with this question on the assumption that Entry 55 in List I confers jurisdiction on the Central Legislature to levy a tax on the capital value, not only of all the assets, but of even a part of the assets. In Byramjee case a Full Bench of this Court had to consider the construction of Entry 54 in List I as against Entry 42 in List II. Incidentally an argument was urged before the Full Bench even as to Entry 55 in List I. Chief Justice Beaumont said that it was unnecessary to consider the argument based on Entry 55; but, nevertheless, he observed that an analysis of the language employed in Entries 54 and 55 respectively affords scope for the argument that the assets mentioned in Entry 55 must mean the totality of the assets. According to Mr. Justice Broomfield, the meaning of the expression capital value of the assets in Entry 55 was by no means clear. He, however, added that it may be that what was intended was a tax on the total value of the assets in the nature of a capital levy. Mr. Justice Kania, on the other hand, expressed his clear opinion that under Entry 55 the tax should be on the total capital assets and not on individual portions of a persons capital. * It was held that the said earlier decision in no manner supported the assessees contention 30. Lastly, reference was made to the decision of this Court in New Manek Chowk Spng. & Wvg. Mills Co. Ltd. v. Municipal Corporation. In that case, it was held by this Court that Entry 49 in List II of VII Schedule permits levy of tax on lands and buildings but not on machinery installed on land or in the building. It was held that Rule 7(2) of the Rules framed under Bombay Provincial Municipal Corporation Act, 1949 which provided that all plant and machinery contained or situated in any building or land shall be deemed to form part of such building or land was held to be beyond the legislative competence of the State. We are unable to see how the principle of this decision is of any assistance to the respondents herein 31.
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of charge shall be the value estimated to be the price which in the opinion of the assessing officer it would fetch if sold in the open market on the valuation date. The expression net wealth is defined in Section 2(m) as the amount by which the aggregate value computed in accordance with the prescribed provisions, is in excess of the aggregate value of all the debts owned by the assessee. Thus it appears that the tax is an annual levy on the total value of all assets owned by an assessee excluding exempted properties. Such value is the price which the property would fetch if sold in the market; in other words its capital value. From the capital value, certain liabilities and debts are to be deducted to arrive at the net wealth. The base of the tax is capital value and net wealth assessable is capital value after deductions of debts and liabilitiesAccording to the learned Chief Justice it is not incumbent on Parliament to provide for deduction of debts in ascertaining the capital value of the assets. But, having said so, the learned Chief Justice does not proceed further and say that such deduction, if provided, changes the character of tax from a tax on capital value to something else. Indeed, on principle, such a statement could not have been made or supported. The learned Chief Justice repeatedly stated that the Parliament or the legislature need not provide for such deductions, but without carrying the thought to its logical conclusion, concluded that the whole of the impugned Act (which as pointed out hereinbefore means the Act 24 of 1969 amending the Wealth Tax Act) clearly falls within Entry 97 of List I. We have already indicated in paragraph 16 earlier that the expression the whole of the impugned Act; did not refer to the wealth tax as originally enacted. We are, therefore, of the opinion that the Wealth Tax Act (as originally enacted and extended to J&K) is a net-wealth tax Act imposed upon the individuals, group of individuals like HUF and companies. The Tax is not upon the assets as such but is upon the individual and companies with reference to the capital value of the assets held by them. As explained in Assistant Commissioner of Urban Land Tax v. Buckingham Carnatic Co. LtdThe language of Entry 86 also clearly indicates that the tax is upon the individuals and not directly upon the assets or upon their value. The wealth tax is determined with reference to the capital value of the assets minus the debts and other deductions mentioned in the Act. We cannot accept the argument that since the tax is contemplated to be levied upon the capital value of the assets of an individual, the exclusion of his debts and other liabilities changes the nature and character of the tax. Indeed, the learned counsel for the respondents could not suggest any enactment relatable to Entry 86 except the Wealth Tax ActIt is argued for the respondents that capital value of the assets on a true interpretation can only mean market value of the assets minus any encumbrances charged upon the assets themselves. The expression does not take in, it is submitted, general liabilities of the person owning them. This argument, in our opinion, ignores the basic nature of the tax contemplated by Entry 86. It is a tax upon the net wealth of an individual. It is a net-wealth tax. Net wealth of an individual necessarily means what all he owns minus what all he owes - and this is what the Act purports to taxMr. Sorabjee relied upon the decisions of the Bombay High Court in Sir Byramjee Jeejeebhoy v. Province of Bombay and Municipal Corporation, Ahmedabad v. Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ). In the first case, the question was whether the Bombay Finance Act, 1932 which levied tax upon urban immovable property was outside the competence of the Bombay Legislature on the ground that the tax levied was one in the nature of Income Tax Act relatable to Entry 54 of the Federal List in VII Schedule to the Government of India Act, 1935. All the three Judges constituting the Full Bench repelled the said argument. In the course of their discussion they also referred to Entry 55 of the Federal List; but that aspect did not arise in that case and, therefore, any passing observation made with respect to the content of the said entry cannot be of any assistance to us in this case. Similarly, in Gordhandas 1954 AIR(Bom) 188, 194 : 55 Bom LR 1028 : ILR 1954 Bom 41 ) the question was with respect to the power of the Bombay Municipal Corporation to levy tax on land. The petitioners contentions were that the said tax falls outside Entry 42 of List II of VII Schedule to the 1935 Act (corresponding to Entry 49 of List II of our Constitution) and that the tax on land imposed by the said Act is really in the nature of tax contemplated by Entry 55 of the Federal List. Reliance was placed upon the decision in Byramjee caseLastly, reference was made to the decision of this Court in New Manek Chowk Spng. & Wvg. Mills Co. Ltd. v. Municipal Corporation. In that case, it was held by this Court that Entry 49 in List II of VII Schedule permits levy of tax on lands and buildings but not on machinery installed on land or in the building. It was held that Rule 7(2) of the Rules framed under Bombay Provincial Municipal Corporation Act, 1949 which provided that all plant and machinery contained or situated in any building or land shall be deemed to form part of such building or land was held to be beyond the legislative competence of the State. We are unable to see how the principle of this decision is of any assistance to the respondents herein
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THE STATE OF WEST BENGAL & ORS Vs. GITASHREE DUTTA (DEY) | a selected candidate does not vest such candidate with the right to direct the Authorities to give him appointment. Having regard to the above, it cannot be said that the State has acted with material irregularity in issuing the impugned notification dated 17.08.2015. 23. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. (1981) 4 SCC 471 has held that no person can claim a right to run a fair price shop as an agent of the government and he could only have a right to be considered for appointment. In this context, this Court observed as follows: 11. ……………… No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointment to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination. 24. The appellant has contended that the State Government was reposed with a responsibility for implementing the 2013 Act which, inter alia, entrusted a responsibility to reform the existing Targeted Distribution System. The respondent in an unfinalized selection process has no vested right in his favour to seek continuation of the notified vacancies. Hence, by recalling the vacancy notification, the State endeavored to enforce the statute and that there can be no estoppel against a statute. 25. It is trite law that there can be no estoppel against a statute. This Court has settled this principle in a catena of judgments, starting as early as 1955. A Constitution Bench of this Court in Thakur Amar Singhji v. State of Rajasthan (1955) 2 SCR 303 held as follows: ….We are unable on these facts to see any basis for a plea of estoppel. The letter dated 28.11.1953 was not addressed to the petitioner; nor does it amount to any assurance or undertaking not to resume the jagir. And even if such assurance had been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statue. 26. A Constitution of Bench of this Court in Electronics Corpn. of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P. (1999) 4 SCC 458 also upheld this principle and held as follows: 21. There are two short answers to this contention. In the first place, there can be no estoppel against a statute……. 27. This Court in A.P. Dairy Development Corpn. Federation v. B Narasimha Reddy (2011) 9 SCC 286, has held that when the actions of the government are not in conformity with law, the doctrine of estoppel would not apply. This Court observed: 40.….The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. 28. It is clear that this Court in several judgments has also upheld that the plea of promissory estoppel would stand negated when the mandate of a statute is followed. This Court in A.P. Pollution Control Board II v. Prof. M.V. Nayudu & ors. (2001) 2 SCC 62, held as under: 69. The learned Appellate Authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of promissory estoppel applied to the facts of this case. There could be no estoppel against the statute…. 29. In the instant case, we have already noticed that the appellants were reposed with a responsibility of implementing the mandate of the 2013 Act, and more importantly, to bring about reforms in the existing Public Distribution System as stipulated under Section 12 of the said Act. The respondent herein being a mere applicant in an un-finalised selection process, has no vested right in his favour to seek continuation of the notified vacancies, when by recalling the vacancy notification, the appellants endeavored to enforce the statute. Moreover, as discussed above, there can be no estoppel against a statute. Even going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the 30.01.2014 vacancy notification, the said notification cannot be sustained, being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof as held in A.P. Dairy Development Corpn. Federation (supra). 30. There is also no merit in the contention of the respondent that the Authorities have taken into consideration the parameters laid down in 2013 Act while declaring the vacancies on 30.01.2014. There is nothing on record to suggest that when the vacancies were declared on 30.01.2014, the Authorities kept in mind the provision of the 2013 Act. The 2013 Act came into effect on 10.09.2013. The vacancy notice is dated 30.01.2014. The vacancy notice does not refer to the provisions of 2013 Act. In our view, it would be improper to infer that the provisions of 2013 Act were kept in mind while issuing vacancy notice dated 30.01.2014. The respondent has not made out a case of arbitrariness or unreasonableness or mala fide. In our view, the Division Bench ought to have held that the notification dated 17.08.2015 was issued to keep the public distribution system in tune with the mandate of 2013 Act, more specifically Section 12 which provides for reform in the public distribution system. | 1[ds]11. However, the doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted the statute. Further, the legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondent. When the decision of public body is in conformity with law or is in public interest, the plea of legitimate expectation cannot be sustained. In Punjab Communications Ltd. v. Union of India and Ors. 1999 (4) SCC 727 this Court held that policy decision creating the legitimate expectation which is normally binding on the decision maker, can be changed by the decision maker in overriding public interest. It was held as under:37. The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way…….12. In Sethi Auto Service Station and Another v. Delhi Development Authority and Others (2009) 1 SCC 180, this Court after referring to various precedents observed as under:32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. [Vide: Union of India v. Hindustan Development Corporation – (1993) 3 SCC 499] .14. There is a necessary inter-play between the plea of legitimate expectation and Article 14. For a decision to be non-arbitrary, the reasonable/legitimate expectations of the claimant have to be considered. However, to decide whether the expectation of the claimant is reasonable or legitimate in the context, is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. In Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 , this Court has pointed out as under:8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.19. It is clear from the different provisions of the 2013 Act that there is a paradigm shift in addressing the problem of food security from the current welfare approach to a right based approach. The Act confers legal right on the eligible beneficiaries to get the essential commodities through fair price shops at a highly subsidized price. The Act also envisages reforms necessary for distribution of essential commodities to the ration card holders.20. This Court in Swaraj Abhiyan v. Union of India & Ors. (2018) 12 SCC 170 has held that the 2013 Act is a social welfare legislation and its provisions are mandatory. It is held thus:42. The provisions in the NFS Act mentioned above are mandatory and yet almost four years down the line they have not been fully implemented by some States.44. These questions have been troubling us since this matter was listed on 24-10-2016 subsequent to our order dated 13-5-2016 in Swaraj Abhiyan (II) [Swaraj Abhiyan (2) v. Union of India, (2016) 7 SCC 498 : (2016) 7 SCC 534 : AIR 2016 SC 2953 ] . We had expected the State Governments concerned to implement the provisions of the NFS Act with all due seriousness since it is a social welfare legislation enacted by Parliament.21. In the present case, upon scrutiny, it was found that declaration of vacancies vide notification dated 30.01.2014 was not in conformity with the 2013 Act and thus, cancellation of the said notification was necessary for the implementation of the provisions of the said Act. In view of above, the plea of legitimate expectation of the respondent is without having any basis.22. We are also of the view that, in the instant case, no promise of any kind was made to continue the existing policy on the part of the State. Furthermore, Clause 4 of the Conditions of the Notification dated 30.01.2014, calling for vacancies, provided that the State could reject applications without ascertaining any reasons. The agency which initiated the selection process is entitled to recall it upon reasonable grounds. Participation in the selection process or being a selected candidate does not vest such candidate with the right to direct the Authorities to give him appointment. Having regard to the above, it cannot be said that the State has acted with material irregularity in issuing the impugned notification dated 17.08.2015.23. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. (1981) 4 SCC 471 has held that no person can claim a right to run a fair price shop as an agent of the government and he could only have a right to be considered for appointment. In this context, this Court observed as follows:11. ……………… No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointment to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination.25. It is trite law that there can be no estoppel against a statute. This Court has settled this principle in a catena of judgments, starting as early as 1955. A Constitution Bench of this Court in Thakur Amar Singhji v. State of Rajasthan (1955) 2 SCR 303 held as follows:….We are unable on these facts to see any basis for a plea of estoppel. The letter dated 28.11.1953 was not addressed to the petitioner; nor does it amount to any assurance or undertaking not to resume the jagir. And even if such assurance had been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statue.26. A Constitution of Bench of this Court in Electronics Corpn. of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P. (1999) 4 SCC 458 also upheld this principle and held as follows:21. There are two short answers to this contention. In the first place, there can be no estoppel against a statute…….27. This Court in A.P. Dairy Development Corpn. Federation v. B Narasimha Reddy (2011) 9 SCC 286, has held that when the actions of the government are not in conformity with law, the doctrine of estoppel would not apply. This Court observed:40.….The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply.28. It is clear that this Court in several judgments has also upheld that the plea of promissory estoppel would stand negated when the mandate of a statute is followed. This Court in A.P. Pollution Control Board II v. Prof. M.V. Nayudu & ors. (2001) 2 SCC 62, held as under:69. The learned Appellate Authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of promissory estoppel applied to the facts of this case. There could be no estoppel against the statute….29. In the instant case, we have already noticed that the appellants were reposed with a responsibility of implementing the mandate of the 2013 Act, and more importantly, to bring about reforms in the existing Public Distribution System as stipulated under Section 12 of the said Act. The respondent herein being a mere applicant in an un-finalised selection process, has no vested right in his favour to seek continuation of the notified vacancies, when by recalling the vacancy notification, the appellants endeavored to enforce the statute. Moreover, as discussed above, there can be no estoppel against a statute. Even going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the 30.01.2014 vacancy notification, the said notification cannot be sustained, being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof as held in A.P. Dairy Development Corpn. Federation (supra).30. There is also no merit in the contention of the respondent that the Authorities have taken into consideration the parameters laid down in 2013 Act while declaring the vacancies on 30.01.2014. There is nothing on record to suggest that when the vacancies were declared on 30.01.2014, the Authorities kept in mind the provision of the 2013 Act. The 2013 Act came into effect on 10.09.2013. The vacancy notice is dated 30.01.2014. The vacancy notice does not refer to the provisions of 2013 Act. In our view, it would be improper to infer that the provisions of 2013 Act were kept in mind while issuing vacancy notice dated 30.01.2014. The respondent has not made out a case of arbitrariness or unreasonableness or mala fide. In our view, the Division Bench ought to have held that the notification dated 17.08.2015 was issued to keep the public distribution system in tune with the mandate of 2013 Act, more specifically Section 12 which provides for reform in the public distribution system. | 1 | 4,043 | 2,344 | ### 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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a selected candidate does not vest such candidate with the right to direct the Authorities to give him appointment. Having regard to the above, it cannot be said that the State has acted with material irregularity in issuing the impugned notification dated 17.08.2015. 23. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. (1981) 4 SCC 471 has held that no person can claim a right to run a fair price shop as an agent of the government and he could only have a right to be considered for appointment. In this context, this Court observed as follows: 11. ……………… No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointment to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination. 24. The appellant has contended that the State Government was reposed with a responsibility for implementing the 2013 Act which, inter alia, entrusted a responsibility to reform the existing Targeted Distribution System. The respondent in an unfinalized selection process has no vested right in his favour to seek continuation of the notified vacancies. Hence, by recalling the vacancy notification, the State endeavored to enforce the statute and that there can be no estoppel against a statute. 25. It is trite law that there can be no estoppel against a statute. This Court has settled this principle in a catena of judgments, starting as early as 1955. A Constitution Bench of this Court in Thakur Amar Singhji v. State of Rajasthan (1955) 2 SCR 303 held as follows: ….We are unable on these facts to see any basis for a plea of estoppel. The letter dated 28.11.1953 was not addressed to the petitioner; nor does it amount to any assurance or undertaking not to resume the jagir. And even if such assurance had been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statue. 26. A Constitution of Bench of this Court in Electronics Corpn. of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P. (1999) 4 SCC 458 also upheld this principle and held as follows: 21. There are two short answers to this contention. In the first place, there can be no estoppel against a statute……. 27. This Court in A.P. Dairy Development Corpn. Federation v. B Narasimha Reddy (2011) 9 SCC 286, has held that when the actions of the government are not in conformity with law, the doctrine of estoppel would not apply. This Court observed: 40.….The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. 28. It is clear that this Court in several judgments has also upheld that the plea of promissory estoppel would stand negated when the mandate of a statute is followed. This Court in A.P. Pollution Control Board II v. Prof. M.V. Nayudu & ors. (2001) 2 SCC 62, held as under: 69. The learned Appellate Authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of promissory estoppel applied to the facts of this case. There could be no estoppel against the statute…. 29. In the instant case, we have already noticed that the appellants were reposed with a responsibility of implementing the mandate of the 2013 Act, and more importantly, to bring about reforms in the existing Public Distribution System as stipulated under Section 12 of the said Act. The respondent herein being a mere applicant in an un-finalised selection process, has no vested right in his favour to seek continuation of the notified vacancies, when by recalling the vacancy notification, the appellants endeavored to enforce the statute. Moreover, as discussed above, there can be no estoppel against a statute. Even going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the 30.01.2014 vacancy notification, the said notification cannot be sustained, being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof as held in A.P. Dairy Development Corpn. Federation (supra). 30. There is also no merit in the contention of the respondent that the Authorities have taken into consideration the parameters laid down in 2013 Act while declaring the vacancies on 30.01.2014. There is nothing on record to suggest that when the vacancies were declared on 30.01.2014, the Authorities kept in mind the provision of the 2013 Act. The 2013 Act came into effect on 10.09.2013. The vacancy notice is dated 30.01.2014. The vacancy notice does not refer to the provisions of 2013 Act. In our view, it would be improper to infer that the provisions of 2013 Act were kept in mind while issuing vacancy notice dated 30.01.2014. The respondent has not made out a case of arbitrariness or unreasonableness or mala fide. In our view, the Division Bench ought to have held that the notification dated 17.08.2015 was issued to keep the public distribution system in tune with the mandate of 2013 Act, more specifically Section 12 which provides for reform in the public distribution system.
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respondent is without having any basis.22. We are also of the view that, in the instant case, no promise of any kind was made to continue the existing policy on the part of the State. Furthermore, Clause 4 of the Conditions of the Notification dated 30.01.2014, calling for vacancies, provided that the State could reject applications without ascertaining any reasons. The agency which initiated the selection process is entitled to recall it upon reasonable grounds. Participation in the selection process or being a selected candidate does not vest such candidate with the right to direct the Authorities to give him appointment. Having regard to the above, it cannot be said that the State has acted with material irregularity in issuing the impugned notification dated 17.08.2015.23. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. (1981) 4 SCC 471 has held that no person can claim a right to run a fair price shop as an agent of the government and he could only have a right to be considered for appointment. In this context, this Court observed as follows:11. ……………… No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointment to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination.25. It is trite law that there can be no estoppel against a statute. This Court has settled this principle in a catena of judgments, starting as early as 1955. A Constitution Bench of this Court in Thakur Amar Singhji v. State of Rajasthan (1955) 2 SCR 303 held as follows:….We are unable on these facts to see any basis for a plea of estoppel. The letter dated 28.11.1953 was not addressed to the petitioner; nor does it amount to any assurance or undertaking not to resume the jagir. And even if such assurance had been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statue.26. A Constitution of Bench of this Court in Electronics Corpn. of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P. (1999) 4 SCC 458 also upheld this principle and held as follows:21. There are two short answers to this contention. In the first place, there can be no estoppel against a statute…….27. This Court in A.P. Dairy Development Corpn. Federation v. B Narasimha Reddy (2011) 9 SCC 286, has held that when the actions of the government are not in conformity with law, the doctrine of estoppel would not apply. This Court observed:40.….The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply.28. It is clear that this Court in several judgments has also upheld that the plea of promissory estoppel would stand negated when the mandate of a statute is followed. This Court in A.P. Pollution Control Board II v. Prof. M.V. Nayudu & ors. (2001) 2 SCC 62, held as under:69. The learned Appellate Authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of promissory estoppel applied to the facts of this case. There could be no estoppel against the statute….29. In the instant case, we have already noticed that the appellants were reposed with a responsibility of implementing the mandate of the 2013 Act, and more importantly, to bring about reforms in the existing Public Distribution System as stipulated under Section 12 of the said Act. The respondent herein being a mere applicant in an un-finalised selection process, has no vested right in his favour to seek continuation of the notified vacancies, when by recalling the vacancy notification, the appellants endeavored to enforce the statute. Moreover, as discussed above, there can be no estoppel against a statute. Even going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the 30.01.2014 vacancy notification, the said notification cannot be sustained, being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof as held in A.P. Dairy Development Corpn. Federation (supra).30. There is also no merit in the contention of the respondent that the Authorities have taken into consideration the parameters laid down in 2013 Act while declaring the vacancies on 30.01.2014. There is nothing on record to suggest that when the vacancies were declared on 30.01.2014, the Authorities kept in mind the provision of the 2013 Act. The 2013 Act came into effect on 10.09.2013. The vacancy notice is dated 30.01.2014. The vacancy notice does not refer to the provisions of 2013 Act. In our view, it would be improper to infer that the provisions of 2013 Act were kept in mind while issuing vacancy notice dated 30.01.2014. The respondent has not made out a case of arbitrariness or unreasonableness or mala fide. In our view, the Division Bench ought to have held that the notification dated 17.08.2015 was issued to keep the public distribution system in tune with the mandate of 2013 Act, more specifically Section 12 which provides for reform in the public distribution system.
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Commissioner Of Income Tax Vs. Mugneeram Bangur & Co | stock in trade, and assessed the appellant upon it for income tax under the Land and Income Tax Act, 1916, of New Zealand, which imposes the tax on all profits or gains derived from any business."11. The Privy Council decided the case in favour of the appellant on two grounds, the first being that "if the transaction is to be treated as a sale, there was no separate sale of the stock, and no valuation of the stock as an item forming part of the aggregate which was sold". In connection with this ground, Lord Phillimore observed that "income tax being a tax upon income, it is well established that the sale of a whole concern which can be shown to be a sale at a profit as compared with the price given for the business, or at which it stands in the books does not give rise to a profit taxable to income tax." He further observed that "where, however, the business consists as in the present case, entirely in buying and selling, it is more difficult to distinguish between an ordinary and a realization sale, the object in either case being to dispose of goods at a higher price than that given for them, and thus to make a profit out of the business. The fact that large blocks of stock are sold does not render the profit obtained anything different in kind from the profit obtained in a series of gradual and smaller sales. This might even by the case if the whole stock was sold out in one sale. Even in the case of a realization sale, if there were an item which could be traced as representing the stock sold, the profit obtained by that sale, though made in conjunction with a sale of the whole concern, might conceivably be treated as taxable income." Lord Phillimore concluded with the following observations:"If a business be one of purely buying and selling, like the present, a profit made by the sale of the whole of the stock, if it stood by itself, might well be assessable to income tax; but their view of the facts (if it be open to them to consider the facts) is the same as that of Stout C. J. - that is, that this was a slump transaction."12. This Court, in Commissioner of Income-Tax, Keral v. West Coast Chemicals Industries Ltd., 1962-46 ITR 135 (SC) understood the Doughtys case, 1927 AC 327 thus:"This case shows that where a slump price is paid and no portion is attributable to the stock-in-trade, it may not be possible to hold that here is a profit other than what results from the appreciation of capital. The essence of the matter; however, is not that an extra amount has been gained by the selling out or the exchange but whether it can fairly be said that there was a trading from which alone profits can arise in business."It follows from the above that once it is accepted that there was a chump transaction in this case, i.e. that the business was sold as a going concern, the only question that remains is whether any portion of the slump price is attributable to the stock in trade.13. The learned counsel for the appellant relies on two grounds to support the contention that there is profit attributable to the sale of land which was stock-in-trade of the vendors. He says first that in the schedule to the agreement the value of land and the value of goodwill and other items is specified. He says that although the amount of Rs.2,50,000 was shown as price of goodwill, it was really excess value of the land sold alongwith other assets. Secondly, he says, relying on the passage already cited above from Doughtys case, 1927 AC 327 that the vendors business was a business of purely buying and selling land. In our opinion, on the facts of this case it cannot be said that the vendors were carrying on the business of purely buying and selling land. In this case the vendors were engaged in buying land, developing it and then selling it. The agreement itself shows that the vendors had already incurred debts and liabilities for development expenses such as opening out roads, laying out drains and sanitary arrangements, providing electricity and providing for a school.14. It seems to us that in the case of a concern carrying on the business of buying land, developing it and then selling it, it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land is stated does not lead to the conclusion that part of the slump price is necessarily attributable to the land sold. There is no evidence that any attempt was made to evaluate the land on the date of sale. As the vendors were transferring the concern to a company, constituted by the vendors themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. What was put in the schedule was the cost price, as it stood in the books of the vendors. Even if the sum of Rs.2,50,000 attributed to goodwill is added to the cost of land, it is nobodys case that this represented the market value of the land.15. In our view the sale was the sale of the whole concern and no part of the slump price is attributable to the cost of land. If this is so, it is clear from the decision of his Court in 1962-46 ITR 135 (SC) and Doughtys case, 1927 AC 327 that no part of the slump price is taxable. We, therefore, answer question No. 3 in the negative. As stated before, in view of this answer, it is not necessary to answer questions Nos. 2 and 4. | 0[ds]In our opinion, on the facts of this case it cannot be said that the vendors were carrying on the business of purely buying and selling land. In this case the vendors were engaged in buying land, developing it and then selling it. The agreement itself shows that the vendors had already incurred debts and liabilities for development expenses such as opening out roads, laying out drains and sanitary arrangements, providing electricity and providing for a school.14. It seems to us that in the case of a concern carrying on the business of buying land, developing it and then selling it, it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land is stated does not lead to the conclusion that part of the slump price is necessarily attributable to the land sold. There is no evidence that any attempt was made to evaluate the land on the date of sale. As the vendors were transferring the concern to a company, constituted by the vendors themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. What was put in the schedule was the cost price, as it stood in the books of the vendors. Even if the sum of Rs.2,50,000 attributed to goodwill is added to the cost of land, it is nobodys case that this represented the market value of the land.15. In our view the sale was the sale of the whole concern and no part of the slump price is attributable to the cost of land. If this is so, it is clear from the decision of his Court inITR 135 (SC) and Doughtys case, 1927 AC 327 that no part of the slump price is taxable. We, therefore, answer question No. 3 in the negative. As stated before, in view of this answer, it is not necessary to answer questions Nos. 2 and 4. | 0 | 3,211 | 389 | ### 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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stock in trade, and assessed the appellant upon it for income tax under the Land and Income Tax Act, 1916, of New Zealand, which imposes the tax on all profits or gains derived from any business."11. The Privy Council decided the case in favour of the appellant on two grounds, the first being that "if the transaction is to be treated as a sale, there was no separate sale of the stock, and no valuation of the stock as an item forming part of the aggregate which was sold". In connection with this ground, Lord Phillimore observed that "income tax being a tax upon income, it is well established that the sale of a whole concern which can be shown to be a sale at a profit as compared with the price given for the business, or at which it stands in the books does not give rise to a profit taxable to income tax." He further observed that "where, however, the business consists as in the present case, entirely in buying and selling, it is more difficult to distinguish between an ordinary and a realization sale, the object in either case being to dispose of goods at a higher price than that given for them, and thus to make a profit out of the business. The fact that large blocks of stock are sold does not render the profit obtained anything different in kind from the profit obtained in a series of gradual and smaller sales. This might even by the case if the whole stock was sold out in one sale. Even in the case of a realization sale, if there were an item which could be traced as representing the stock sold, the profit obtained by that sale, though made in conjunction with a sale of the whole concern, might conceivably be treated as taxable income." Lord Phillimore concluded with the following observations:"If a business be one of purely buying and selling, like the present, a profit made by the sale of the whole of the stock, if it stood by itself, might well be assessable to income tax; but their view of the facts (if it be open to them to consider the facts) is the same as that of Stout C. J. - that is, that this was a slump transaction."12. This Court, in Commissioner of Income-Tax, Keral v. West Coast Chemicals Industries Ltd., 1962-46 ITR 135 (SC) understood the Doughtys case, 1927 AC 327 thus:"This case shows that where a slump price is paid and no portion is attributable to the stock-in-trade, it may not be possible to hold that here is a profit other than what results from the appreciation of capital. The essence of the matter; however, is not that an extra amount has been gained by the selling out or the exchange but whether it can fairly be said that there was a trading from which alone profits can arise in business."It follows from the above that once it is accepted that there was a chump transaction in this case, i.e. that the business was sold as a going concern, the only question that remains is whether any portion of the slump price is attributable to the stock in trade.13. The learned counsel for the appellant relies on two grounds to support the contention that there is profit attributable to the sale of land which was stock-in-trade of the vendors. He says first that in the schedule to the agreement the value of land and the value of goodwill and other items is specified. He says that although the amount of Rs.2,50,000 was shown as price of goodwill, it was really excess value of the land sold alongwith other assets. Secondly, he says, relying on the passage already cited above from Doughtys case, 1927 AC 327 that the vendors business was a business of purely buying and selling land. In our opinion, on the facts of this case it cannot be said that the vendors were carrying on the business of purely buying and selling land. In this case the vendors were engaged in buying land, developing it and then selling it. The agreement itself shows that the vendors had already incurred debts and liabilities for development expenses such as opening out roads, laying out drains and sanitary arrangements, providing electricity and providing for a school.14. It seems to us that in the case of a concern carrying on the business of buying land, developing it and then selling it, it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land is stated does not lead to the conclusion that part of the slump price is necessarily attributable to the land sold. There is no evidence that any attempt was made to evaluate the land on the date of sale. As the vendors were transferring the concern to a company, constituted by the vendors themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. What was put in the schedule was the cost price, as it stood in the books of the vendors. Even if the sum of Rs.2,50,000 attributed to goodwill is added to the cost of land, it is nobodys case that this represented the market value of the land.15. In our view the sale was the sale of the whole concern and no part of the slump price is attributable to the cost of land. If this is so, it is clear from the decision of his Court in 1962-46 ITR 135 (SC) and Doughtys case, 1927 AC 327 that no part of the slump price is taxable. We, therefore, answer question No. 3 in the negative. As stated before, in view of this answer, it is not necessary to answer questions Nos. 2 and 4.
### Response:
0
### Explanation:
In our opinion, on the facts of this case it cannot be said that the vendors were carrying on the business of purely buying and selling land. In this case the vendors were engaged in buying land, developing it and then selling it. The agreement itself shows that the vendors had already incurred debts and liabilities for development expenses such as opening out roads, laying out drains and sanitary arrangements, providing electricity and providing for a school.14. It seems to us that in the case of a concern carrying on the business of buying land, developing it and then selling it, it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land is stated does not lead to the conclusion that part of the slump price is necessarily attributable to the land sold. There is no evidence that any attempt was made to evaluate the land on the date of sale. As the vendors were transferring the concern to a company, constituted by the vendors themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. What was put in the schedule was the cost price, as it stood in the books of the vendors. Even if the sum of Rs.2,50,000 attributed to goodwill is added to the cost of land, it is nobodys case that this represented the market value of the land.15. In our view the sale was the sale of the whole concern and no part of the slump price is attributable to the cost of land. If this is so, it is clear from the decision of his Court inITR 135 (SC) and Doughtys case, 1927 AC 327 that no part of the slump price is taxable. We, therefore, answer question No. 3 in the negative. As stated before, in view of this answer, it is not necessary to answer questions Nos. 2 and 4.
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RAMA NAND Vs. CHIEF SEC.GOVT.OF NCT OF DELHI | to the higher pay scale. Sub-para (iv) is stated to further clarify this aspect that if there is process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. 12. On the other hand, learned ASG submitted that the aforesaid principle have to be read in the context of what has been set out before in paras 27 and 28. The law explaining the difference between upgradation and promotion was set out in Union of India v. Pushpa Rani (2008) 9 SCC 242 and those principles have been extracted in para 27, the relevant portion of para 27 reads as under: 27. In Union of India v. Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851] this Court examined the entire case law and explained the difference between upgradation and promotion thus: (SCC pp. 244h- 245h) In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word promotion means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word promotion has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 13. The posts in the case of Pushpa Rani (supra) was held to be promotion for the reasons set out in para 28. 28. In Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851], this Court while considering a scheme contained in the Letter dated 9-10-2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such posts by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable. 14. The submission of learned ASG was that the conclusions will have to be read in the aforesaid context. Thus, a promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity - in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. 15. Learned counsel in the aforesaid context, while turning to the factual matrix of the present case, submitted that there are three aspects which are material in the present case: (i) prequalification of minimum of 5 years of service; (ii) higher financial emoluments; (iii) rigorous of a specialised training These make a candidate eligible. It was, thus, a submission that if all these three are considered together, there can be no doubt that the present case is one which should be considered as the promotion for the purpose of ACP Scheme. 16. We have examined the aforesaid contention and we are of the view that the benefits of ACP Scheme cannot be held applicable to the appellants and consequently the High Court was right in interfering with the order of the CAT. 17. The reasons for coming to this conclusion is based on the principles set out in the BSNL case (supra). No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all T elephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or reorganisation of the cadre. On applying the test in BSNL case (supra), as per sub-para (i) of para 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para (iv). 18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. | 0[ds]8. On an examination of the Office Memorandum dated 9.8.1999 bringing forth the ACP Scheme, it is apparent that the same was a consequence of the Fifth Central Pay Commission Report recommending such a Scheme for civilian employees, and was to be viewed as a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.9. Our attention has been drawn to the circular dated 24.2.1984 that provided for a training to be conducted at the headquarters of DFS for a period of two months. Such training had to be carried in two batches under the supervision of the Wireless Officer. In fact, the reference of the reorganisation of the wireless and communication system in the DFS as per item no. 137 contained in the Commissioners letter dated 29.8.1983, sets out the reasons for the same as an endeavour to increase the efficiency of the original wireless communication system introduced in 1961 and the requirement of reorganisation in view of the change in the technology itself. It is clearly stated that the existing twenty-seven T elephone Operators would be in the higher pay scale as set out aforesaid after necessary training of short duration. There was also a requirement of the fulfilment of the essential condition of 5 years of experience in the post of T elephone Operator as even set out in the writ petition filed before the High Court.16. We have examined the aforesaid contention and we are of the view that the benefits of ACP Scheme cannot be held applicable to the appellants and consequently the High Court was right in interfering with the order of the CAT.17. The reasons for coming to this conclusion is based on the principles set out in the BSNL case (supra). No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all T elephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or reorganisation of the cadre. On applying the test in BSNL case (supra), as per sub-para (i) of para 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para (iv).18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. | 0 | 3,085 | 747 | ### 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:
to the higher pay scale. Sub-para (iv) is stated to further clarify this aspect that if there is process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. 12. On the other hand, learned ASG submitted that the aforesaid principle have to be read in the context of what has been set out before in paras 27 and 28. The law explaining the difference between upgradation and promotion was set out in Union of India v. Pushpa Rani (2008) 9 SCC 242 and those principles have been extracted in para 27, the relevant portion of para 27 reads as under: 27. In Union of India v. Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851] this Court examined the entire case law and explained the difference between upgradation and promotion thus: (SCC pp. 244h- 245h) In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word promotion means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word promotion has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 13. The posts in the case of Pushpa Rani (supra) was held to be promotion for the reasons set out in para 28. 28. In Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851], this Court while considering a scheme contained in the Letter dated 9-10-2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such posts by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable. 14. The submission of learned ASG was that the conclusions will have to be read in the aforesaid context. Thus, a promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity - in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. 15. Learned counsel in the aforesaid context, while turning to the factual matrix of the present case, submitted that there are three aspects which are material in the present case: (i) prequalification of minimum of 5 years of service; (ii) higher financial emoluments; (iii) rigorous of a specialised training These make a candidate eligible. It was, thus, a submission that if all these three are considered together, there can be no doubt that the present case is one which should be considered as the promotion for the purpose of ACP Scheme. 16. We have examined the aforesaid contention and we are of the view that the benefits of ACP Scheme cannot be held applicable to the appellants and consequently the High Court was right in interfering with the order of the CAT. 17. The reasons for coming to this conclusion is based on the principles set out in the BSNL case (supra). No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all T elephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or reorganisation of the cadre. On applying the test in BSNL case (supra), as per sub-para (i) of para 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para (iv). 18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.
### Response:
0
### Explanation:
8. On an examination of the Office Memorandum dated 9.8.1999 bringing forth the ACP Scheme, it is apparent that the same was a consequence of the Fifth Central Pay Commission Report recommending such a Scheme for civilian employees, and was to be viewed as a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.9. Our attention has been drawn to the circular dated 24.2.1984 that provided for a training to be conducted at the headquarters of DFS for a period of two months. Such training had to be carried in two batches under the supervision of the Wireless Officer. In fact, the reference of the reorganisation of the wireless and communication system in the DFS as per item no. 137 contained in the Commissioners letter dated 29.8.1983, sets out the reasons for the same as an endeavour to increase the efficiency of the original wireless communication system introduced in 1961 and the requirement of reorganisation in view of the change in the technology itself. It is clearly stated that the existing twenty-seven T elephone Operators would be in the higher pay scale as set out aforesaid after necessary training of short duration. There was also a requirement of the fulfilment of the essential condition of 5 years of experience in the post of T elephone Operator as even set out in the writ petition filed before the High Court.16. We have examined the aforesaid contention and we are of the view that the benefits of ACP Scheme cannot be held applicable to the appellants and consequently the High Court was right in interfering with the order of the CAT.17. The reasons for coming to this conclusion is based on the principles set out in the BSNL case (supra). No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all T elephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or reorganisation of the cadre. On applying the test in BSNL case (supra), as per sub-para (i) of para 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para (iv).18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.
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Union of India & Ors Vs. Anil Prasad | equal to the completed years of service rendered in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. However, the pay arrived at should not exceed the basic pay last drawn by them in the Armed Forces. Therefore, on a true interpretation of Para 8 on re-employment in the government service, an employee working with the Armed Forces, on reemployment shall be entitled to advance increments equal to the completed years of service rendered by him in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which he is employed. Para 8 of the CCS Order makes a reference to two rates of pay in case of emergency commissioned officers and shortservice commissioned officers being appointed in the government service: First, they may be granted advance increment equal to the completed years of service rendered by them in the armed forces on a basic pay equal to or higher than the minimum of the scale attached to the civil posts in which they are employed. The pay is to be fixed with reference to the scale attached to the civil posts in which they are employed; Second, while computing the pay in the aforesaid manner it should not exceed the basic pay last drawn by them in the armed forces. In another words, while computing the pay of the said officers who joined the civil posts their pay cannot exceed last drawn pay by them in the armed forces. In case it exceeds then it is capped to the last drawn pay in the armed forces. Therefore, a claim for the last drawn pay in the armed forces is not a matter of right. Applying the above in the present case, it is noted that the respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100) in the armed forces and six advance increments equal to the number of years the respondent served in the Indian Army was added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil post is Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay in the civil post. The said pay of Rs.25,080/- does not exceed the pay last drawn by the respondent in the armed forces. Hence, the pay so computed is just and proper. Para 8 of the CCS Order does not indicate that the pay last drawn by the respondent in the armed forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under para 8 of the CCS. The manner of computation of pay as envisaged under para 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the armed force. That does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the armed force. Also, para 8 of the CCS Order makes a reference to the civil post in which the personnel of armed force is to be employed with reference to the minimum scale of pay attached to the civil post and while computing the pay scale the last drawn pay in the armed force has no relevance in the sense that there is no pay protection that can be sought by the expersonnel of armed force. The reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. For example, if the minimum of the scale attached to the civil post is higher than the last drawn pay of the personnel in the armed force and while computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds then possibly the last drawn pay in the armed forces could be paid. The said Rule proscribes fixation of a pay exceeding the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where computation of pay exceeds last drawn pay in the armed forces then, in such a situation possibly the last drawn pay of such a personnel can be fixed. In the present case while serving in the Armed Forces respondent was in the pay scale of Rs.15600 – 39100. The post on which he was re-employed in the government service also carries the pay scale of Rs.15600 – 39100 and he has been allowed advance increments of six years as he completed six years of service in the Armed Forces. However, his grade pay has been fixed at Rs.5400 being the grade pay which is available for the civil post. 5.4 Therefore, the pay fixation of the respondent in the government service was absolutely in consonance with para 8 of the CCS Order 1986. Para 8 does not provide that on reemployment in Government Services a retired Armed Force personnel would be entitled to his basic pay being fixed at par with his last drawn pay. Holding so will violate para 8 of the CCS Order. Under the circumstances the High Court has committed a grave error in observing and holding that the retired Armed Forces personnel on re-appointment in the government service would be entitled to the last drawn pay as Armed Forces personnel. Therefore, the impugned judgment and order passed by the High Court is unsustainable being contrary to para 8 of the CCS Order, 1986. | 1[ds]5.3 On a plain reading of the above provision an Emergency Commissioned Officer and a Short Service Commissioned Officer working in the Armed Forces on his employment to a civil post shall be entitled to advance increments equal to the completed years of service rendered in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. However, the pay arrived at should not exceed the basic pay last drawn by them in the Armed Forces. Therefore, on a true interpretation of Para 8 on re-employment in the government service, an employee working with the Armed Forces, on reemployment shall be entitled to advance increments equal to the completed years of service rendered by him in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which he is employed.Para 8 of the CCS Order makes a reference to two rates of pay in case of emergency commissioned officers and shortservice commissioned officers being appointed in the government service: First, they may be granted advance increment equal to the completed years of service rendered by them in the armed forces on a basic pay equal to or higher than the minimum of the scale attached to the civil posts in which they are employed. The pay is to be fixed with reference to the scale attached to the civil posts in which they are employed; Second, while computing the pay in the aforesaid manner it should not exceed the basic pay last drawn by them in the armed forces. In another words, while computing the pay of the said officers who joined the civil posts their pay cannot exceed last drawn pay by them in the armed forces. In case it exceeds then it is capped to the last drawn pay in the armed forces. Therefore, a claim for the last drawn pay in the armed forces is not a matter of right.Applying the above in the present case, it is noted that the respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100) in the armed forces and six advance increments equal to the number of years the respondent served in the Indian Army was added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil post is Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay in the civil post. The said pay of Rs.25,080/- does not exceed the pay last drawn by the respondent in the armed forces. Hence, the pay so computed is just and proper.Para 8 of the CCS Order does not indicate that the pay last drawn by the respondent in the armed forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under para 8 of the CCS. The manner of computation of pay as envisaged under para 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the armed force. That does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the armed force.Also, para 8 of the CCS Order makes a reference to the civil post in which the personnel of armed force is to be employed with reference to the minimum scale of pay attached to the civil post and while computing the pay scale the last drawn pay in the armed force has no relevance in the sense that there is no pay protection that can be sought by the expersonnel of armed force. The reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. For example, if the minimum of the scale attached to the civil post is higher than the last drawn pay of the personnel in the armed force and while computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds then possibly the last drawn pay in the armed forces could be paid. The said Rule proscribes fixation of a pay exceeding the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where computation of pay exceeds last drawn pay in the armed forces then, in such a situation possibly the last drawn pay of such a personnel can be fixed.In the present case while serving in the Armed Forces respondent was in the pay scale of Rs.15600 – 39100. The post on which he was re-employed in the government service also carries the pay scale of Rs.15600 – 39100 and he has been allowed advance increments of six years as he completed six years of service in the Armed Forces. However, his grade pay has been fixed at Rs.5400 being the grade pay which is available for the civil post.5.4 Therefore, the pay fixation of the respondent in the government service was absolutely in consonance with para 8 of the CCS Order 1986. Para 8 does not provide that on reemployment in Government Services a retired Armed Force personnel would be entitled to his basic pay being fixed at par with his last drawn pay. Holding so will violate para 8 of the CCS Order. Under the circumstances the High Court has committed a grave error in observing and holding that the retired Armed Forces personnel on re-appointment in the government service would be entitled to the last drawn pay as Armed Forces personnel. Therefore, the impugned judgment and order passed by the High Court is unsustainable being contrary to para 8 of the CCS Order, 1986. | 1 | 2,417 | 1,088 | ### 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:
equal to the completed years of service rendered in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. However, the pay arrived at should not exceed the basic pay last drawn by them in the Armed Forces. Therefore, on a true interpretation of Para 8 on re-employment in the government service, an employee working with the Armed Forces, on reemployment shall be entitled to advance increments equal to the completed years of service rendered by him in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which he is employed. Para 8 of the CCS Order makes a reference to two rates of pay in case of emergency commissioned officers and shortservice commissioned officers being appointed in the government service: First, they may be granted advance increment equal to the completed years of service rendered by them in the armed forces on a basic pay equal to or higher than the minimum of the scale attached to the civil posts in which they are employed. The pay is to be fixed with reference to the scale attached to the civil posts in which they are employed; Second, while computing the pay in the aforesaid manner it should not exceed the basic pay last drawn by them in the armed forces. In another words, while computing the pay of the said officers who joined the civil posts their pay cannot exceed last drawn pay by them in the armed forces. In case it exceeds then it is capped to the last drawn pay in the armed forces. Therefore, a claim for the last drawn pay in the armed forces is not a matter of right. Applying the above in the present case, it is noted that the respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100) in the armed forces and six advance increments equal to the number of years the respondent served in the Indian Army was added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil post is Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay in the civil post. The said pay of Rs.25,080/- does not exceed the pay last drawn by the respondent in the armed forces. Hence, the pay so computed is just and proper. Para 8 of the CCS Order does not indicate that the pay last drawn by the respondent in the armed forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under para 8 of the CCS. The manner of computation of pay as envisaged under para 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the armed force. That does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the armed force. Also, para 8 of the CCS Order makes a reference to the civil post in which the personnel of armed force is to be employed with reference to the minimum scale of pay attached to the civil post and while computing the pay scale the last drawn pay in the armed force has no relevance in the sense that there is no pay protection that can be sought by the expersonnel of armed force. The reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. For example, if the minimum of the scale attached to the civil post is higher than the last drawn pay of the personnel in the armed force and while computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds then possibly the last drawn pay in the armed forces could be paid. The said Rule proscribes fixation of a pay exceeding the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where computation of pay exceeds last drawn pay in the armed forces then, in such a situation possibly the last drawn pay of such a personnel can be fixed. In the present case while serving in the Armed Forces respondent was in the pay scale of Rs.15600 – 39100. The post on which he was re-employed in the government service also carries the pay scale of Rs.15600 – 39100 and he has been allowed advance increments of six years as he completed six years of service in the Armed Forces. However, his grade pay has been fixed at Rs.5400 being the grade pay which is available for the civil post. 5.4 Therefore, the pay fixation of the respondent in the government service was absolutely in consonance with para 8 of the CCS Order 1986. Para 8 does not provide that on reemployment in Government Services a retired Armed Force personnel would be entitled to his basic pay being fixed at par with his last drawn pay. Holding so will violate para 8 of the CCS Order. Under the circumstances the High Court has committed a grave error in observing and holding that the retired Armed Forces personnel on re-appointment in the government service would be entitled to the last drawn pay as Armed Forces personnel. Therefore, the impugned judgment and order passed by the High Court is unsustainable being contrary to para 8 of the CCS Order, 1986.
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### Explanation:
shall be entitled to advance increments equal to the completed years of service rendered in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. However, the pay arrived at should not exceed the basic pay last drawn by them in the Armed Forces. Therefore, on a true interpretation of Para 8 on re-employment in the government service, an employee working with the Armed Forces, on reemployment shall be entitled to advance increments equal to the completed years of service rendered by him in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which he is employed.Para 8 of the CCS Order makes a reference to two rates of pay in case of emergency commissioned officers and shortservice commissioned officers being appointed in the government service: First, they may be granted advance increment equal to the completed years of service rendered by them in the armed forces on a basic pay equal to or higher than the minimum of the scale attached to the civil posts in which they are employed. The pay is to be fixed with reference to the scale attached to the civil posts in which they are employed; Second, while computing the pay in the aforesaid manner it should not exceed the basic pay last drawn by them in the armed forces. In another words, while computing the pay of the said officers who joined the civil posts their pay cannot exceed last drawn pay by them in the armed forces. In case it exceeds then it is capped to the last drawn pay in the armed forces. Therefore, a claim for the last drawn pay in the armed forces is not a matter of right.Applying the above in the present case, it is noted that the respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100) in the armed forces and six advance increments equal to the number of years the respondent served in the Indian Army was added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil post is Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay in the civil post. The said pay of Rs.25,080/- does not exceed the pay last drawn by the respondent in the armed forces. Hence, the pay so computed is just and proper.Para 8 of the CCS Order does not indicate that the pay last drawn by the respondent in the armed forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under para 8 of the CCS. The manner of computation of pay as envisaged under para 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the armed force. That does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the armed force.Also, para 8 of the CCS Order makes a reference to the civil post in which the personnel of armed force is to be employed with reference to the minimum scale of pay attached to the civil post and while computing the pay scale the last drawn pay in the armed force has no relevance in the sense that there is no pay protection that can be sought by the expersonnel of armed force. The reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. For example, if the minimum of the scale attached to the civil post is higher than the last drawn pay of the personnel in the armed force and while computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds then possibly the last drawn pay in the armed forces could be paid. The said Rule proscribes fixation of a pay exceeding the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where computation of pay exceeds last drawn pay in the armed forces then, in such a situation possibly the last drawn pay of such a personnel can be fixed.In the present case while serving in the Armed Forces respondent was in the pay scale of Rs.15600 – 39100. The post on which he was re-employed in the government service also carries the pay scale of Rs.15600 – 39100 and he has been allowed advance increments of six years as he completed six years of service in the Armed Forces. However, his grade pay has been fixed at Rs.5400 being the grade pay which is available for the civil post.5.4 Therefore, the pay fixation of the respondent in the government service was absolutely in consonance with para 8 of the CCS Order 1986. Para 8 does not provide that on reemployment in Government Services a retired Armed Force personnel would be entitled to his basic pay being fixed at par with his last drawn pay. Holding so will violate para 8 of the CCS Order. Under the circumstances the High Court has committed a grave error in observing and holding that the retired Armed Forces personnel on re-appointment in the government service would be entitled to the last drawn pay as Armed Forces personnel. Therefore, the impugned judgment and order passed by the High Court is unsustainable being contrary to para 8 of the CCS Order, 1986.
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Tata Iron and Steel Company Limited Vs. Collector of Central Excise | it t o M/s. Tata Yodogawa Ltd on payment of duty for conversion of scrap into ingots after re-melting which was actually re-melted and re-used by the appellant as ingot, it is appropriate to extract the two entries relating to steel ingots and iron or steel products: "26.- Steel Ingots including - Rs. 100 per Steel Melting Scrap. metric tonne." "26AA.- Iron or steel products, the following namely:- (i) Semi-finished Rs. Three hund- steel including red and fifty blooms, billets, per metric slabs, sheet tome bars, tin bars and hoe bars. (ii) ............................. (iii) ............................. (iv) ...................... ....... (v) ............................. Item 26 levies duty on raw material. In commercial parlance steel ingots are used for producing steel products. Raw melting scrap serves the same purpose. Item 26AA deals with iron and steel product s. What are those products is mentioned in clauses (i) to (v) of the item. These appeals are concerned with the scope of clause (i). It deals with semi-finished steel. A semi-finished product is one which requires some/further work or treatment to become serviceable. But it cannot apply to scrap as it is normally understood as something which is not serviceable. Even the Tribunal held that scrap produced by appellant, did not strictly answer to the description but they can resemble or closely resemble them, qualifying to be called substandard blooms or slabs or bars or channels. But a sub-standard article is not scrap as understood in commercial parlance or trade circle. Two reasons have been given by the Tribunal for including scrap of iron and steel in Item 26AA one, price circular issued by Controller of Iron and Steel classifying scrap into industrial, re-rolling and melting scrap and fixing different rate for each and other the size of scrap. T he Tribunal held that even though scrap sold by the appellant to M/s. Tata Yodogawa Ltd. was melted to produce ingots but that was not determinative of its character as what was melted was not melting scrap because of its size, therefore, it did not attract levy under Item 26 but under Item 26AA being something like sub-standard goods." 3. When the matter was pending in appeal the Assistant Collector of Central Excise wrote a letter to the Director of Inspection (Metallurgical) , Jamshedpur, requesting him to give his views whether the scrap sold by the appellant under agreement to different parties for manufacturing steel ingots out of the scrap could be described as re-melting scrap as the Department on examining the invoices found that maximum length of such scrap of various products like rails, billets, plates, lee, channels, angles, beams etc. were only upto 1.5 meters and such scraps, according to Iron and Steel Controllers specification of 1959, could not be classified as re-melting scrap. This letter was replied by the Director and it was mentioned that from the letter sent by the Assistant Collector it appeared that the size and dimension of the scrap was taken as the sole yardstick for classification and, if that be the case then the classification of scraps solely on the basis of size factor can hardly be considered a very rational classification. The Director further was of the opinion that, the steel manufacturing operations generate scrap which is in turn reused not only in the steel making process but also in plant furnaces and cupolas. This scrap is called process scrap or "arisings" of steel mills. Cuttings of rails, billets, plates, axles, channels etc. supplied to M/ s Tata Yodogawa Ltd. are arisings of TISCOs mills. These scraps (process scrap) arc usually treated as melting scraps in developed countries as wIl as in India. There are different grades of melting scrap heavy, medium and light. He further observed that the technology has changed and in view of the developments in iron and steel industry the size factor could not always be main criterion for the classification of steel scraps. 4. Although this letter is not relevant but it goes to demonstrate that size of the scrap is not determinative whether it was melting scrap or not. Scrap according to dictionary means, a small piece cut or broken from something; fragment. In commercial parlance scrap is normally understood as wast. But it may be used for re-rolling or re-melting for bringing out raw material to be used for producing finished products. Under Entry 26AA what is exigible to duty is semi-finished steel including blooms, billets, slab s, sheet bars etc. Semi finished may mean between raw material and finished products. But it cannot be described as scrap. A sub-standard bloom or billet is steel bloom or billet. But the scrap of billet or bloom would not be the same thing as semi-finished product. In the commercial sense, scrap and semi-finished products cannot be understood in the same sense. The attempt of the Department, therefore, to levy duty on scrap under Item 26AA was not correct. 5. Melting scrap is defined as:- "Scrap which cannot be used for any other purposes but can be charged into furnace for melting should be classified as melting scrap". The Tribunal held that since the appellant did not dispute that the scrap produced by the appellant could be industrial scrap, the scrap produced by it could not be taken to be remelting scrap. Item 26 purports to levy duty on re-melting scrap. The Tribunal having found that the scrap produced by the appellant was remelted the products cleared by the appellant satisfied the test of being re-melting scrap. 6. Neither reason given by the Tribunal, therefore, appears to be sound. Price fixation by Controller of Iron and Steel could not furnish basis for interpreting the entry, for levying duty under the Central Excise &Salt Act, 1944. The Controller might have classified scrap depending on size and terming it as rolling, melting and industrial scrap but that could not render it as semi-finished steel products. Size of scrap may be relevant for fixation of price but it could not reflect on the nature of scrap. | 1[ds]6. Neither reason given by the Tribunal, therefore, appears to be sound. Price fixation by Controller of Iron and Steel could not furnish basis for interpreting the entry, for levying duty under the Central Excise &Salt Act, 1944. The Controller might have classified scrap depending on size and terming it as rolling, melting and industrial scrap but that could not render it as semi-finished steel products. Size of scrap may be relevant for fixation of price but it could not reflect on the nature of scrap. | 1 | 1,229 | 101 | ### Instruction:
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### Input:
it t o M/s. Tata Yodogawa Ltd on payment of duty for conversion of scrap into ingots after re-melting which was actually re-melted and re-used by the appellant as ingot, it is appropriate to extract the two entries relating to steel ingots and iron or steel products: "26.- Steel Ingots including - Rs. 100 per Steel Melting Scrap. metric tonne." "26AA.- Iron or steel products, the following namely:- (i) Semi-finished Rs. Three hund- steel including red and fifty blooms, billets, per metric slabs, sheet tome bars, tin bars and hoe bars. (ii) ............................. (iii) ............................. (iv) ...................... ....... (v) ............................. Item 26 levies duty on raw material. In commercial parlance steel ingots are used for producing steel products. Raw melting scrap serves the same purpose. Item 26AA deals with iron and steel product s. What are those products is mentioned in clauses (i) to (v) of the item. These appeals are concerned with the scope of clause (i). It deals with semi-finished steel. A semi-finished product is one which requires some/further work or treatment to become serviceable. But it cannot apply to scrap as it is normally understood as something which is not serviceable. Even the Tribunal held that scrap produced by appellant, did not strictly answer to the description but they can resemble or closely resemble them, qualifying to be called substandard blooms or slabs or bars or channels. But a sub-standard article is not scrap as understood in commercial parlance or trade circle. Two reasons have been given by the Tribunal for including scrap of iron and steel in Item 26AA one, price circular issued by Controller of Iron and Steel classifying scrap into industrial, re-rolling and melting scrap and fixing different rate for each and other the size of scrap. T he Tribunal held that even though scrap sold by the appellant to M/s. Tata Yodogawa Ltd. was melted to produce ingots but that was not determinative of its character as what was melted was not melting scrap because of its size, therefore, it did not attract levy under Item 26 but under Item 26AA being something like sub-standard goods." 3. When the matter was pending in appeal the Assistant Collector of Central Excise wrote a letter to the Director of Inspection (Metallurgical) , Jamshedpur, requesting him to give his views whether the scrap sold by the appellant under agreement to different parties for manufacturing steel ingots out of the scrap could be described as re-melting scrap as the Department on examining the invoices found that maximum length of such scrap of various products like rails, billets, plates, lee, channels, angles, beams etc. were only upto 1.5 meters and such scraps, according to Iron and Steel Controllers specification of 1959, could not be classified as re-melting scrap. This letter was replied by the Director and it was mentioned that from the letter sent by the Assistant Collector it appeared that the size and dimension of the scrap was taken as the sole yardstick for classification and, if that be the case then the classification of scraps solely on the basis of size factor can hardly be considered a very rational classification. The Director further was of the opinion that, the steel manufacturing operations generate scrap which is in turn reused not only in the steel making process but also in plant furnaces and cupolas. This scrap is called process scrap or "arisings" of steel mills. Cuttings of rails, billets, plates, axles, channels etc. supplied to M/ s Tata Yodogawa Ltd. are arisings of TISCOs mills. These scraps (process scrap) arc usually treated as melting scraps in developed countries as wIl as in India. There are different grades of melting scrap heavy, medium and light. He further observed that the technology has changed and in view of the developments in iron and steel industry the size factor could not always be main criterion for the classification of steel scraps. 4. Although this letter is not relevant but it goes to demonstrate that size of the scrap is not determinative whether it was melting scrap or not. Scrap according to dictionary means, a small piece cut or broken from something; fragment. In commercial parlance scrap is normally understood as wast. But it may be used for re-rolling or re-melting for bringing out raw material to be used for producing finished products. Under Entry 26AA what is exigible to duty is semi-finished steel including blooms, billets, slab s, sheet bars etc. Semi finished may mean between raw material and finished products. But it cannot be described as scrap. A sub-standard bloom or billet is steel bloom or billet. But the scrap of billet or bloom would not be the same thing as semi-finished product. In the commercial sense, scrap and semi-finished products cannot be understood in the same sense. The attempt of the Department, therefore, to levy duty on scrap under Item 26AA was not correct. 5. Melting scrap is defined as:- "Scrap which cannot be used for any other purposes but can be charged into furnace for melting should be classified as melting scrap". The Tribunal held that since the appellant did not dispute that the scrap produced by the appellant could be industrial scrap, the scrap produced by it could not be taken to be remelting scrap. Item 26 purports to levy duty on re-melting scrap. The Tribunal having found that the scrap produced by the appellant was remelted the products cleared by the appellant satisfied the test of being re-melting scrap. 6. Neither reason given by the Tribunal, therefore, appears to be sound. Price fixation by Controller of Iron and Steel could not furnish basis for interpreting the entry, for levying duty under the Central Excise &Salt Act, 1944. The Controller might have classified scrap depending on size and terming it as rolling, melting and industrial scrap but that could not render it as semi-finished steel products. Size of scrap may be relevant for fixation of price but it could not reflect on the nature of scrap.
### Response:
1
### Explanation:
6. Neither reason given by the Tribunal, therefore, appears to be sound. Price fixation by Controller of Iron and Steel could not furnish basis for interpreting the entry, for levying duty under the Central Excise &Salt Act, 1944. The Controller might have classified scrap depending on size and terming it as rolling, melting and industrial scrap but that could not render it as semi-finished steel products. Size of scrap may be relevant for fixation of price but it could not reflect on the nature of scrap.
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Saheb Reddy Vs. Sharanappa | as “the Succession Act”) all the family members had got share in the properties of late Smt. Sharnappa. The first appellate Court had held that defendant no.1, who had been adopted on 9th February, 1971 would get 1/4th share of his adoptive mother’s property, whereas the plaintiff would get not only 1/16th share of the property, but also 1/64th share of the property of Smt. Sharnappa for the reason that Smt. Sharnappa had one adopted son and three daughters and therefore, the plaintiff would, at the first instance, get 1/4th share of Smt. Nagamma, the property which she had inherited from her mother Smt. Sharnappa and further 1/64th share from the property of Smt. Sharnappa (grandmother) as Smt. Sharnappa had died intestate. Thus, the plaintiff was entitled to 5/64th share in the suit property.11. Being aggrieved by the judgment of the first appellate Court, defendant no.1 filed Regular Second Appeal no.7310 of 2009 before the High Court. The High Court by the impugned judgment accepted the said second appeal by setting aside the judgment of the first appellate Court and restored the judgment and decree of the trial Court.12. We have heard the learned counsel at length, on facts as well as on legal issues. The issues involved in the instant case also pertain to facts. The core question which, in our opinion, arises for our consideration in this appeal is whether the High Court has rightly allocated share of the properties among the family members in accordance with the Hindu Succession Act, 1956.13. It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters.14. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.15. So far as inheritance of the suit property in favour of the plaintiff is concerned, in our opinion, the first appellate Court was correct to the effect that the plaintiff would inherit not only property of his mother, Smt. Nagamma along with his three sisters, but he would also have share in the properties of his grandmother, late Smt. Sharnappa. Smt. Sharnappa had also not prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant no.1 and heirs of her three daughters, who had predeceased Smt. Sharnappa. Smt. Sharnappa was having 1/4th share in the entire property, which she had inherited from her husband late Shri Sharnappa. One of the daughters being Nagamma, heirs of Nagamma would inherit 1/4th share of property of Smt. Sharnappa and the plaintiff being one of the four heirs of late Smt. Nagamma, would get 1/64th share from the property of his grandmother Smt. Sharnappa.16. As originally Smt. Sharnappa was to get 1/4th share from the property of Shri Sharnappa, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt. Nagamma and 1/64th share upon death of Smt. Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property.17. Upon appreciation of the evidence, it was found by the trial Court that the adoption was valid because that was by virtue of a registered adoption deed and the said deed had been duly proved. In the circumstances, we do not think it necessary to discuss the said evidence again. We confirm the view of the first appellate Court that the adopted son viz. defendant no.1 would not divest any person in whom the property had been vested prior to adoption. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 reads as under :-“12 Effects of adoption. – An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:Provided that—(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”18. Looking at the aforestated provisions of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded. | 1[ds]13. It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters.14. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.15. So far as inheritance of the suit property in favour of the plaintiff is concerned, in our opinion, the first appellate Court was correct to the effect that the plaintiff would inherit not only property of his mother, Smt. Nagamma along with his three sisters, but he would also have share in the properties of his grandmother, late Smt. Sharnappa. Smt. Sharnappa had also not prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant no.1 and heirs of her three daughters, who had predeceased Smt. Sharnappa. Smt. Sharnappa was having 1/4th share in the entire property, which she had inherited from her husband late Shri Sharnappa. One of the daughters being Nagamma, heirs of Nagamma would inherit 1/4th share of property of Smt. Sharnappa and the plaintiff being one of the four heirs of late Smt. Nagamma, would get 1/64th share from the property of his grandmother Smt. Sharnappa.16. As originally Smt. Sharnappa was to get 1/4th share from the property of Shri Sharnappa, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt. Nagamma and 1/64th share upon death of Smt. Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property.17. Upon appreciation of the evidence, it was found by the trial Court that the adoption was valid because that was by virtue of a registered adoption deed and the said deed had been duly proved. In the circumstances, we do not think it necessary to discuss the said evidence again. We confirm the view of the first appellate Court that the adopted son viz. defendant no.1 would not divest any person in whom the property had been vested prior to adoption.Looking at the aforestated provisions of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded. | 1 | 2,413 | 644 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
as “the Succession Act”) all the family members had got share in the properties of late Smt. Sharnappa. The first appellate Court had held that defendant no.1, who had been adopted on 9th February, 1971 would get 1/4th share of his adoptive mother’s property, whereas the plaintiff would get not only 1/16th share of the property, but also 1/64th share of the property of Smt. Sharnappa for the reason that Smt. Sharnappa had one adopted son and three daughters and therefore, the plaintiff would, at the first instance, get 1/4th share of Smt. Nagamma, the property which she had inherited from her mother Smt. Sharnappa and further 1/64th share from the property of Smt. Sharnappa (grandmother) as Smt. Sharnappa had died intestate. Thus, the plaintiff was entitled to 5/64th share in the suit property.11. Being aggrieved by the judgment of the first appellate Court, defendant no.1 filed Regular Second Appeal no.7310 of 2009 before the High Court. The High Court by the impugned judgment accepted the said second appeal by setting aside the judgment of the first appellate Court and restored the judgment and decree of the trial Court.12. We have heard the learned counsel at length, on facts as well as on legal issues. The issues involved in the instant case also pertain to facts. The core question which, in our opinion, arises for our consideration in this appeal is whether the High Court has rightly allocated share of the properties among the family members in accordance with the Hindu Succession Act, 1956.13. It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters.14. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.15. So far as inheritance of the suit property in favour of the plaintiff is concerned, in our opinion, the first appellate Court was correct to the effect that the plaintiff would inherit not only property of his mother, Smt. Nagamma along with his three sisters, but he would also have share in the properties of his grandmother, late Smt. Sharnappa. Smt. Sharnappa had also not prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant no.1 and heirs of her three daughters, who had predeceased Smt. Sharnappa. Smt. Sharnappa was having 1/4th share in the entire property, which she had inherited from her husband late Shri Sharnappa. One of the daughters being Nagamma, heirs of Nagamma would inherit 1/4th share of property of Smt. Sharnappa and the plaintiff being one of the four heirs of late Smt. Nagamma, would get 1/64th share from the property of his grandmother Smt. Sharnappa.16. As originally Smt. Sharnappa was to get 1/4th share from the property of Shri Sharnappa, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt. Nagamma and 1/64th share upon death of Smt. Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property.17. Upon appreciation of the evidence, it was found by the trial Court that the adoption was valid because that was by virtue of a registered adoption deed and the said deed had been duly proved. In the circumstances, we do not think it necessary to discuss the said evidence again. We confirm the view of the first appellate Court that the adopted son viz. defendant no.1 would not divest any person in whom the property had been vested prior to adoption. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 reads as under :-“12 Effects of adoption. – An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:Provided that—(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”18. Looking at the aforestated provisions of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded.
### Response:
1
### Explanation:
13. It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters.14. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.15. So far as inheritance of the suit property in favour of the plaintiff is concerned, in our opinion, the first appellate Court was correct to the effect that the plaintiff would inherit not only property of his mother, Smt. Nagamma along with his three sisters, but he would also have share in the properties of his grandmother, late Smt. Sharnappa. Smt. Sharnappa had also not prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant no.1 and heirs of her three daughters, who had predeceased Smt. Sharnappa. Smt. Sharnappa was having 1/4th share in the entire property, which she had inherited from her husband late Shri Sharnappa. One of the daughters being Nagamma, heirs of Nagamma would inherit 1/4th share of property of Smt. Sharnappa and the plaintiff being one of the four heirs of late Smt. Nagamma, would get 1/64th share from the property of his grandmother Smt. Sharnappa.16. As originally Smt. Sharnappa was to get 1/4th share from the property of Shri Sharnappa, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt. Nagamma and 1/64th share upon death of Smt. Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property.17. Upon appreciation of the evidence, it was found by the trial Court that the adoption was valid because that was by virtue of a registered adoption deed and the said deed had been duly proved. In the circumstances, we do not think it necessary to discuss the said evidence again. We confirm the view of the first appellate Court that the adopted son viz. defendant no.1 would not divest any person in whom the property had been vested prior to adoption.Looking at the aforestated provisions of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded.
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Fcs Software Solutions Ltd Vs. La Medical Devices Ltd. | Bank of India v. Official Liquidator, High Court of Calcutta & Ors., (2000) 5 SCC 274 , this Court observed that in auction sale of the property of the Company which is ordered to be wound up, the Company Court acts as a custodian for the interest of the Company and its creditors. It is the duty of the Company Court to satisfy itself as to reasonableness of price by disclosing valuation report to secured creditors of the Company and other interested persons. It was further held that the Court should exercise judicial discretion to ensure that sale of property should fetch adequate price. For deciding what would be reasonable price, valuation report of an expert is essential. The Company Judge himself must apply his mind to the valuation report. The Court observed that the High Court did not interfere with the auction sale on the ground of sympathy for the workers which was not proper. The auction sale was, therefore, set aside by this Court and Official Liquidator was directed to re-sell the property after obtaining fresh valuation report and after furnishing copy of such report to secured creditors. 28. In Divya Manufacturing Company (P) Ltd. v. Union Bank of India & Ors., (2000) 6 SCC 69 , this Court held that even confirmed sale can be set aside. In that case, highest bid by a party was accepted by the Court and the sale was confirmed, but before possession was delivered to the auction purchaser and execution of sale deed, other parties offered much higher price. The High Court required the subsequent bidders to deposit an amount of 25% which was done. Considering the facts in their entirety, the High Court set aside the confirmation of past highest bid. The said action was challenged in this Court. 29. This Court held that in an appropriate case, even confirmed sale can be set aside. The Court in this connection, relied upon earlier two decisions in LICA (P) Ltd. (1) v. Official Liquidator, (1996) 85 Comp Cas 788 (SC) and LICA (P) Ltd. (2) v. Official Liquidator, (1996) 85 Comp Cas 792 (SC). 30. The learned counsel for the appellant is no doubt right in submitting that in Divya, there was a specific condition (Clause 11) which empowered the Court to set aside confirmed sale "in the interest of creditors, contributors and all concerned and/or public interests". 31. But the Court put the matter on principle and stated; "It is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud". (emphasis supplied) 32. It proceeded to observe; "Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court". (emphasis supplied) 33. In Gajraj Jain v. State of Bihar & Ors., (2004) 7 SCC 151 , this Court reiterated that in absence of valuation report and reserve price, the auction sale becomes only a pretence. If there is no proper mechanism and if the intending purchasers are not able to know details of the assets or itomised valuation, auction sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all bidders must know the details of the assets and the valuation thereof. 34. In the present case, it was alleged that there were several irregularities in the first auction. The tender notice did not state valuation of movable and immovable property; reserve price was not fixed, inventory of plant and machinery was not made available, etc. If on consideration of these facts, the Company Judge ordered fresh auction, in our considered opinion, no complaint can be made against such action. 35. In our opinion, the submission of the learned counsel for respondent NO. 3 is also well-founded that when its highest bid of Rs.3.5 crores was accepted, opportunity was afforded to the appellant. It, however, did not avail such opportunity. The counsel is also right in referring to subsequent events that after the fresh auction, sale deed was executed, possession was handed over to respondent No.3, it had incurred expenses. If at this stage, the sale is set aside, serious prejudice will be caused to respondent No. 3-Society. 36. At the same time, however, from the facts it is clear that the appellants bid was accepted in November, 2004. Immediately, it had deposited 25% amount. The appellant also deposited remaining amount of 75% on April 12/13, 2005. It would, therefore, be appropriate if we direct respondent No. 3 to pay an amount of Rs.30 lacs to the appellant which in our opinion would serve the ends of justice. Payment of Rs.30 lacs will serve as a "solatium to the purchaser for his trouble and disappointment for the loss of that which is perhaps a good bargain". [Vide Chundi Charan v. Bankey Behary, (1899) ILR 26 Cal 449 (FB)]. 37. Before parting, we may clarify that serious allegations have been levelled by the appellant against the then Official Liquidator. It was also stated that Central Bureau of Investigation (CBI) has instituted criminal proceedings alleging corruption against the Official Liquidator and he was arrested. We are disposing of the present appeal as in our opinion, the order passed by the Company Jude and confirmed by the Division Bench of the High Court are in consonance with law. But we may not be understood to have expressed any opinion on the allegations levelled by the appellant against the Official Liquidator. As and when the matter comes up for consideration before an appropriate Court/Authority, it will be decided on its own merits irrespective of the disposal of this appeal by us. | 1[ds]21. Having heard the learned counsel for the parties, in our opinion, no case has been made out by the appellant against the order passed by the High Court. From the facts stated above, it is clear that in November, 2004, the bid of the appellant was highest and was accepted by the Official Liquidator. But it is also clear that certain facts which were necessary to be brought to the notice of intending purchasers were not set out in the proclamation of sale nor were disclosed at the time of sale notice. They related to valuation of movable and immovable properties, fixation of reserve price, non-inventory of plant and machinery, etc. The attention of the Company Judge was invited by other bidders by filing Company Applications. The Company Judge considered the objections and having prima facie satisfied, ordered fresh auction. We find no illegality in the said approach. When fresh bids were received, it was found that the highest offer was of respondent No. 3-Society which was of Rs.3.5 crores. The Company Judge extended an opportunity to the appellant to raise its bid. It, however, appears that the appellant was adamant to get the property for Rs.1.47 crores on the ground that the said offer was highest and all the proceedings taken by the Official Liquidator and Company Judge thereafter were totally illegal and unlawful. In our opinion, the respondents are right that in such cases, the approach of the Company Judge should be to get highest price so as to satisfy maximum claims against the Company in liquidation. The procedure followed by the Company Judge, therefore, cannot be said to be illegal.Before parting, we may clarify that serious allegations have been levelled by the appellant against the then Official Liquidator. It was also stated that Central Bureau of Investigation (CBI) has instituted criminal proceedings alleging corruption against the Official Liquidator and he was arrested. We are disposing of the present appeal as in our opinion, the order passed by the Company Jude and confirmed by the Division Bench of the High Court are in consonance with law. But we may not be understood to have expressed any opinion on the allegations levelled by the appellant against the Official Liquidator. As and when the matter comes up for consideration before an appropriate Court/Authority, it will be decided on its own merits irrespective of the disposal of this appeal by us. | 1 | 4,570 | 445 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Bank of India v. Official Liquidator, High Court of Calcutta & Ors., (2000) 5 SCC 274 , this Court observed that in auction sale of the property of the Company which is ordered to be wound up, the Company Court acts as a custodian for the interest of the Company and its creditors. It is the duty of the Company Court to satisfy itself as to reasonableness of price by disclosing valuation report to secured creditors of the Company and other interested persons. It was further held that the Court should exercise judicial discretion to ensure that sale of property should fetch adequate price. For deciding what would be reasonable price, valuation report of an expert is essential. The Company Judge himself must apply his mind to the valuation report. The Court observed that the High Court did not interfere with the auction sale on the ground of sympathy for the workers which was not proper. The auction sale was, therefore, set aside by this Court and Official Liquidator was directed to re-sell the property after obtaining fresh valuation report and after furnishing copy of such report to secured creditors. 28. In Divya Manufacturing Company (P) Ltd. v. Union Bank of India & Ors., (2000) 6 SCC 69 , this Court held that even confirmed sale can be set aside. In that case, highest bid by a party was accepted by the Court and the sale was confirmed, but before possession was delivered to the auction purchaser and execution of sale deed, other parties offered much higher price. The High Court required the subsequent bidders to deposit an amount of 25% which was done. Considering the facts in their entirety, the High Court set aside the confirmation of past highest bid. The said action was challenged in this Court. 29. This Court held that in an appropriate case, even confirmed sale can be set aside. The Court in this connection, relied upon earlier two decisions in LICA (P) Ltd. (1) v. Official Liquidator, (1996) 85 Comp Cas 788 (SC) and LICA (P) Ltd. (2) v. Official Liquidator, (1996) 85 Comp Cas 792 (SC). 30. The learned counsel for the appellant is no doubt right in submitting that in Divya, there was a specific condition (Clause 11) which empowered the Court to set aside confirmed sale "in the interest of creditors, contributors and all concerned and/or public interests". 31. But the Court put the matter on principle and stated; "It is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud". (emphasis supplied) 32. It proceeded to observe; "Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court". (emphasis supplied) 33. In Gajraj Jain v. State of Bihar & Ors., (2004) 7 SCC 151 , this Court reiterated that in absence of valuation report and reserve price, the auction sale becomes only a pretence. If there is no proper mechanism and if the intending purchasers are not able to know details of the assets or itomised valuation, auction sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all bidders must know the details of the assets and the valuation thereof. 34. In the present case, it was alleged that there were several irregularities in the first auction. The tender notice did not state valuation of movable and immovable property; reserve price was not fixed, inventory of plant and machinery was not made available, etc. If on consideration of these facts, the Company Judge ordered fresh auction, in our considered opinion, no complaint can be made against such action. 35. In our opinion, the submission of the learned counsel for respondent NO. 3 is also well-founded that when its highest bid of Rs.3.5 crores was accepted, opportunity was afforded to the appellant. It, however, did not avail such opportunity. The counsel is also right in referring to subsequent events that after the fresh auction, sale deed was executed, possession was handed over to respondent No.3, it had incurred expenses. If at this stage, the sale is set aside, serious prejudice will be caused to respondent No. 3-Society. 36. At the same time, however, from the facts it is clear that the appellants bid was accepted in November, 2004. Immediately, it had deposited 25% amount. The appellant also deposited remaining amount of 75% on April 12/13, 2005. It would, therefore, be appropriate if we direct respondent No. 3 to pay an amount of Rs.30 lacs to the appellant which in our opinion would serve the ends of justice. Payment of Rs.30 lacs will serve as a "solatium to the purchaser for his trouble and disappointment for the loss of that which is perhaps a good bargain". [Vide Chundi Charan v. Bankey Behary, (1899) ILR 26 Cal 449 (FB)]. 37. Before parting, we may clarify that serious allegations have been levelled by the appellant against the then Official Liquidator. It was also stated that Central Bureau of Investigation (CBI) has instituted criminal proceedings alleging corruption against the Official Liquidator and he was arrested. We are disposing of the present appeal as in our opinion, the order passed by the Company Jude and confirmed by the Division Bench of the High Court are in consonance with law. But we may not be understood to have expressed any opinion on the allegations levelled by the appellant against the Official Liquidator. As and when the matter comes up for consideration before an appropriate Court/Authority, it will be decided on its own merits irrespective of the disposal of this appeal by us.
### Response:
1
### Explanation:
21. Having heard the learned counsel for the parties, in our opinion, no case has been made out by the appellant against the order passed by the High Court. From the facts stated above, it is clear that in November, 2004, the bid of the appellant was highest and was accepted by the Official Liquidator. But it is also clear that certain facts which were necessary to be brought to the notice of intending purchasers were not set out in the proclamation of sale nor were disclosed at the time of sale notice. They related to valuation of movable and immovable properties, fixation of reserve price, non-inventory of plant and machinery, etc. The attention of the Company Judge was invited by other bidders by filing Company Applications. The Company Judge considered the objections and having prima facie satisfied, ordered fresh auction. We find no illegality in the said approach. When fresh bids were received, it was found that the highest offer was of respondent No. 3-Society which was of Rs.3.5 crores. The Company Judge extended an opportunity to the appellant to raise its bid. It, however, appears that the appellant was adamant to get the property for Rs.1.47 crores on the ground that the said offer was highest and all the proceedings taken by the Official Liquidator and Company Judge thereafter were totally illegal and unlawful. In our opinion, the respondents are right that in such cases, the approach of the Company Judge should be to get highest price so as to satisfy maximum claims against the Company in liquidation. The procedure followed by the Company Judge, therefore, cannot be said to be illegal.Before parting, we may clarify that serious allegations have been levelled by the appellant against the then Official Liquidator. It was also stated that Central Bureau of Investigation (CBI) has instituted criminal proceedings alleging corruption against the Official Liquidator and he was arrested. We are disposing of the present appeal as in our opinion, the order passed by the Company Jude and confirmed by the Division Bench of the High Court are in consonance with law. But we may not be understood to have expressed any opinion on the allegations levelled by the appellant against the Official Liquidator. As and when the matter comes up for consideration before an appropriate Court/Authority, it will be decided on its own merits irrespective of the disposal of this appeal by us.
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Harbilas Rai Bansal Vs. The State Of Punjab & Anr | rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow-up and need the premises for their personal use. It would be wholly arbitrary a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premises for life and even after the tenants death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premises. 13. Learned counsel for the respondents contended that a tenant occupying non-residential premises and the one occupying residential premises belong to two different classes under the Act and as such no fault can be found with the amendment. Assuming that the classification exists, it has no nexus with the object sought to be achieved by the Act. Tenants of both kinds of buildings need equal and same protection of the beneficial provisions of the Act. Neither from the objects and reasons of the Act nor from the provisions of the Act it is possible to discern any basis for the classification created by the amendment. 14. This Court in Rattan Arya etc. v. State of Tamil Nadu , 1986(2) RCR 328(SC) : 1986(2) SCR 596 struck down Section 13(ii) of the Tamil Nadu buildings (Lease and Rent Control) Act, 1960 as violative of Article 14 of the Constitution of India on the ground that the distinction made by it between the tenant of a residential building and the tenant of a non-residential building based on the rent paid by the respective tenants had no reasonable nexus to the object sought to be achieved by the Act. 15. A Constitution Bench of this Court in Gian Devi Anand v. Jeevan Kumar and others, 1985(1) RCR 459(SC) : [1985(2) SCC 683] observed as under :- 39. Before concluding, there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the grounds specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. In spite of various restrictions put on the landlords right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bonafide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bonafide for his own use and occupation , the landlord should be entitled to recover the possession of the premises which continues to be his property in spite of his letting out the same to a tenant. The Legislature in its wisdom did recognise this fact and the legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisibility of making the bona fide rquirement of the landlord a ground of eviction in respect of commercial premises as well. 16. In Gian Devis case the question for consideration before the Constitution Bench was whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above quoted observations were made by the Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench ``bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial fully support the view, we have taken, that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck-down. | 1[ds]To be permissible under Article 14 of the Constitution a classification must satisfy two conditions namely (i) that the classification must be founded on an intelligible differentia which distinguishes person or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different basis, but what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration11. The Scheme of the Act, unmistakably aims at regulating the conditions of tenancy, controlling the rents and preventing unreasonable and mala fide eviction of tenants of the residential and non-residential buildings. For the advancement of these objects, tenants are invested with certain rights and landlords are subjected to certain obligations. These rights and obligations are attached to the tenants and the landlords of all buildings, residential or non-residential. None of the main provisions of the Act, to which we have referred, make any serious distinction between residential and non-residential buildings12. The provisions of the Act, prior to the amendment, were uniformly applicable to the residential and non-residential buildings. The amendment, in the year 1956, created the impugned classification. The objects and reasons of the Act indicate that it was enacted with a view to restrict the increase of rents and to safeguard against the mala fide eviction of tenants. The Act, therefore, initially provided - confirming to its objects and reasons - bona fide requirement of the premises by the landlord, whether residential or non-residential, as a ground of eviction of the tenant. The classification created by the amendment has no nexus with the object sought to be achieved by the Act. To vacate a premises for the bona fide requirement of the landlord would not cause any hardships to the tenant. Statutory protection to a tenant cannot be extended to such an extent that the landlord is precluded from evicting the tenant for the rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow-up and need the premises for their personal use. It would be wholly arbitrary a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premises for life and even after the tenants death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premisesAssuming that the classification exists, it has no nexus with the object sought to be achieved by the Act. Tenants of both kinds of buildings need equal and same protection of the beneficial provisions of the Act. Neither from the objects and reasons of the Act nor from the provisions of the Act it is possible to discern any basis for the classification created by the amendment16. In Gian Devis case the question for consideration before the Constitution Bench was whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above quoted observations were made by the Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench ``bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial fully support the view, we have taken, that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck-down. | 1 | 3,479 | 845 | ### 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:
rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow-up and need the premises for their personal use. It would be wholly arbitrary a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premises for life and even after the tenants death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premises. 13. Learned counsel for the respondents contended that a tenant occupying non-residential premises and the one occupying residential premises belong to two different classes under the Act and as such no fault can be found with the amendment. Assuming that the classification exists, it has no nexus with the object sought to be achieved by the Act. Tenants of both kinds of buildings need equal and same protection of the beneficial provisions of the Act. Neither from the objects and reasons of the Act nor from the provisions of the Act it is possible to discern any basis for the classification created by the amendment. 14. This Court in Rattan Arya etc. v. State of Tamil Nadu , 1986(2) RCR 328(SC) : 1986(2) SCR 596 struck down Section 13(ii) of the Tamil Nadu buildings (Lease and Rent Control) Act, 1960 as violative of Article 14 of the Constitution of India on the ground that the distinction made by it between the tenant of a residential building and the tenant of a non-residential building based on the rent paid by the respective tenants had no reasonable nexus to the object sought to be achieved by the Act. 15. A Constitution Bench of this Court in Gian Devi Anand v. Jeevan Kumar and others, 1985(1) RCR 459(SC) : [1985(2) SCC 683] observed as under :- 39. Before concluding, there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the grounds specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. In spite of various restrictions put on the landlords right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bonafide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bonafide for his own use and occupation , the landlord should be entitled to recover the possession of the premises which continues to be his property in spite of his letting out the same to a tenant. The Legislature in its wisdom did recognise this fact and the legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisibility of making the bona fide rquirement of the landlord a ground of eviction in respect of commercial premises as well. 16. In Gian Devis case the question for consideration before the Constitution Bench was whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above quoted observations were made by the Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench ``bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial fully support the view, we have taken, that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck-down.
### Response:
1
### Explanation:
To be permissible under Article 14 of the Constitution a classification must satisfy two conditions namely (i) that the classification must be founded on an intelligible differentia which distinguishes person or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different basis, but what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration11. The Scheme of the Act, unmistakably aims at regulating the conditions of tenancy, controlling the rents and preventing unreasonable and mala fide eviction of tenants of the residential and non-residential buildings. For the advancement of these objects, tenants are invested with certain rights and landlords are subjected to certain obligations. These rights and obligations are attached to the tenants and the landlords of all buildings, residential or non-residential. None of the main provisions of the Act, to which we have referred, make any serious distinction between residential and non-residential buildings12. The provisions of the Act, prior to the amendment, were uniformly applicable to the residential and non-residential buildings. The amendment, in the year 1956, created the impugned classification. The objects and reasons of the Act indicate that it was enacted with a view to restrict the increase of rents and to safeguard against the mala fide eviction of tenants. The Act, therefore, initially provided - confirming to its objects and reasons - bona fide requirement of the premises by the landlord, whether residential or non-residential, as a ground of eviction of the tenant. The classification created by the amendment has no nexus with the object sought to be achieved by the Act. To vacate a premises for the bona fide requirement of the landlord would not cause any hardships to the tenant. Statutory protection to a tenant cannot be extended to such an extent that the landlord is precluded from evicting the tenant for the rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow-up and need the premises for their personal use. It would be wholly arbitrary a situation like this - to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premises for life and even after the tenants death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premisesAssuming that the classification exists, it has no nexus with the object sought to be achieved by the Act. Tenants of both kinds of buildings need equal and same protection of the beneficial provisions of the Act. Neither from the objects and reasons of the Act nor from the provisions of the Act it is possible to discern any basis for the classification created by the amendment16. In Gian Devis case the question for consideration before the Constitution Bench was whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above quoted observations were made by the Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench ``bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial fully support the view, we have taken, that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck-down.
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